IN THE CASE OF:	

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090019561 


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 his general discharge be upgraded to honorable.  He also requests the entry in item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be removed.
 
2.  The applicant states he was discharged because of a positive urinalysis, but he later received a letter stating the urinalysis tests during this time were not scientifically or legally supportable.

3.  The applicant provides an undated letter, subject:  Correction of Military Records, Positive Urinalysis Tests During the Period April 27, 1982, through October 31, 1983, in support of his 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 enlisted in the Regular Army on 7 August 1979 for a period of 3 years.  He successfully completed basic combat training and advanced individual training and was awarded military occupational specialty 68M (aircraft weapons systems repairer).

3.  On 17 June 1983, the applicant tested positive for marijuana on a unit sweep urine sample.  There is no evidence the applicant received any punishment for the positive urinalysis.  On 12 July 1983, he was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for abuse of marijuana.  On 18 July 1983, it was determined that rehabilitation efforts for the applicant were not practical and would likely be unsuccessful and the applicant was declared a rehabilitation failure.

4.  On 11 August 1983, the applicant was recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, for drug-abuse rehabilitation failure.  The discharge authority approved the recommendation on 25 August 1983 and directed that the applicant be furnished a general discharge.  The applicant was discharged on 1 October 1983.

5.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "Army Regulation 635-200, chapter 9."  Item 26 (Separation Code) of his DD Form 214 shows the entry "JPC."  Item 28 of his DD Form 214 shows the entry "drug abuse - rehabilitation failure."

6.  In support of his claim, the applicant provided an undated letter pertaining to positive urinalysis tests during the period 27 April 1983 through 31 October 1983.  This letter states, in pertinent part, "The review of your positive urinalysis test reveals that it did not meet all scientific or legal requirements for use in disciplinary or administrative actions."

7.  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 were not scientifically or legally supportable for use in disciplinary or adverse administrative actions.

8.  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.

9.  The review team specifically examined the applicant's test results and determined the specimen given was found to have met the standards established by a "blue ribbon" panel.  Accordingly, that urinalysis was determined to be scientifically supportable and legally sufficient.

10.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.

12.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation, in effect at the time, states the reason for discharge based on separation code JPC is "drug abuse rehabilitation failure" and the regulatory authority is Army Regulation 635-200, chapter 9.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he was discharged because of a positive urinalysis and he later received a letter stating the urinalysis tests during this time were not scientifically or legally supportable was noted.  However, that letter was undated.  The evidence of record shows the review team specifically examined the applicant's test results and determined the specimen was legally sufficient and scientifically supportable.  
2.  The applicant was properly referred to the ADAPCP for treatment and rehabilitation.  He was declared a rehabilitation failure.  Accordingly, that declaration and the discharge which was based upon it, were proper and should not be voided.  His overall military record does not warrant upgrading his discharge to fully honorable.

3.   The narrative reason for separation used in the applicant's case is correct and was applied in accordance with the applicable regulations.

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.



      _____________X____________
                 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)                                         AR20090019561



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ABCMR Record of Proceedings (cont)                                         AR20090019561



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