IN THE CASE OF:	  

		BOARD DATE:	        16 JULY 2009

		DOCKET NUMBER:  AR20090002344 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests back pay and restoration of all his rights and privileges or an upgrade of his under honorable conditions discharge to an honorable discharge.

2.  The applicant states that while he had used drugs and failed the first urinalysis given, he immediately stopped all drug use and has never used drugs since that time.  He states that when he went for a second and third urinalysis they both came back positive.  He states he was discharged from the service and never understood why his urinalysis would have been positive since he had stopped all drug use.  He further states there is a court case, Cooper, that dealt with this.  He states he was just made aware of the Cooper case and the faulty urinalysis. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he enlisted in the Regular Army on 22 October 1981 for four years.  He was awarded the military occupational specialty of 19K, M1 Abrams armor crewman, and was promoted to pay grade
E-4.  The available records do not show any significant acts of achievement or valor during his military service.

3.  Records indicate that on 11 March 1983 the applicant was command-referred for treatment in the local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) due to a positive urinalysis for THC (tetrahydrocannabidinol).  On 21 March 1983, he entered Track II of the program, which consisted of individual counseling, consultation with his chain of command, alternatives to alcohol and drug abuse, goal analysis, and group therapy.

4.  A letter from the Community Counseling Center (CCC), subject, Alcohol and Drug Discharge, dated 14 July 1983, addressed to the applicant's commander stated that the applicant actively participated in activities; however, he had come up positive for THC on a subsequent urinalysis.  The document indicated that because of this, the commander had determined the applicant's rehabilitation potential to be poor and had declared him a chapter 9 failure.

5.  On 13 July 1983, the applicant was notified by his commander of his intent to recommend his elimination from the U.S. Army under the provisions of chapter 9, Army Regulation 635-200 (Personnel Separations) for his use of alcohol and involvement in drugs.  The commander stated he felt the applicant was a disruptive influence within the unit and the U.S. Army.  The applicant acknowledged that military legal counsel for consultation would be available to assist him upon request, which he requested.  He elected not to submit written documentation on his own behalf.

6.  On 15 July 1983, the applicant's commander recommended the applicant be eliminated from the service before his expiration term of service for alcohol/drug abuse.  The reasons for the commander's recommendation for elimination was because the applicant had been declared a rehabilitative failure in the CCC Program and had shown that he couldn't conform to the standards of the U.S. Army.

7.  On 15 July 1983, the appropriate authority approved the applicant's discharge from the Army under the provisions of Army Regulation 635-200, chapter 9 and directed the applicant be issued a General Discharge Certificate.

8.  On 4 August 1983, the applicant was discharged under the provisions of chapter 9 of Army Regulation 635-200 due to drug abuse rehabilitation failure.  The DD Form 214 issued shows he completed a total of 1 year, 9 months, and 13 days of active service characterized as under honorable conditions.

9.  In 1983, a "Blue Ribbon" Panel of experts in toxicology and drug testing was established to evaluate the scientific and administrative procedures used by Army laboratories where urine specimens were tested.  The panel's report, entitled "Review of Urinalysis Drug Testing Program," dated 12 December 1983, concluded that the testing procedures used by all laboratories were adequate to identify drug abuse and found no significant evidence of false positive urinalysis reports.  However, the panel did find that a percentage of previously-reported positive urinalysis results was not scientifically or legally supportable for use in disciplinary or administrative actions.

10.  Subsequently, the Deputy Chief of Staff for Personnel established a team of military chemists and lawyers called the "Urinalysis Records Review Team."  This team reviewed available records of all positive urinalysis results reported from 27 April 1982 through 31 October 1983.  The results of this review contain the test results pertaining to two of the applicant's urinalyses and show that the results were not deficient.  Consequently, a conclusion that the applicant's urine specimens contained illegal drugs would be legally and/or scientifically supportable for use in disciplinary or administrative actions.

11.  Army Regulation 635-200 paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant admits to drug use while in the service and does not contest the validity of the February 1983 positive urinalysis for THC.  He contends, however, that he immediately stopped using drugs and has never used drugs since that time.

2.  Two positive urinalyses of specimens submitted by the applicant are shown on the Urinalysis Records Review Team master file of those tested between 27 April 1982 through 31 October 1983.  These two specimens were determined to be legally and/or scientifically supportable and could therefore serve as the basis for adverse administrative or disciplinary actions.

3.  The applicant was properly referred to the ADAPCP for treatment and rehabilitation.  He was declared a rehabilitation failure on the basis of a subsequent supportable positive urinalysis.  Accordingly, that declaration and the discharge that was based upon it were proper.

4.  In view of the foregoing, there is no basis for granting the applicant's request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  _____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _XXX______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20090002344



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ABCMR Record of Proceedings (cont)                                         AR20090002344



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