IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100012492 


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 an upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states he failed a drug test in the summer of 1983 and was accordingly discharged.  He received a letter after his discharge explaining that the drug testing system at the time of his military service may have been flawed and he could be entitled to an upgrade of his discharge.  He was also offered a choice to return to the military.

3.  The applicant did not provide any additional documentary evidence.

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 records show he enlisted in the Regular Army for a period of 3 years on 8 October 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty 81C (Field Artillery Surveyor).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  His records show he served in Germany from 17 March 1982 to 16 September 1983 and he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar, Expert Marksmanship Qualification Badge with Hand Grenade Bar, Army Service Ribbon, and Overseas Service Ribbon.

4.  On 1 November 1982, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being disorderly in the command.

5.  On 5 November 1982, the applicant was referred for screening and/or enrollment in the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for being drunk and disorderly.  He was recommended for Track I (Awareness Education) enrollment in ADAPCP, but his chain of command recommended him for Track II (Outpatient Treatment) enrollment after consulting with an alcohol and drug control officer.

6.  On 9 June 1983, the applicant underwent a unit urinalysis and his urine sample tested positive for tetrahydrocannabinol (THC).

7.  On 19 July 1983, the Noncommissioned Officer in Charge, Grafenwoehr Community Counseling Center, indicated that subsequent to a "drunk and disorderly" incident, the applicant was enrolled in Track II of the ADAPCP.  He attended three group sessions and two individual sessions prior to his May 1983 disenrollment.  He submitted a urine sample that tested positive for THC on 9 June 1983 that prompted his reenrollment on 8 July 1983.  It was assumed he had significantly progressed in the ADAPCP; however, the recent positive urine sample attested to his insincerity.  His potential for rehabilitation was poor.  He was recommended for administrative separation chapter 9 of Army Regulation 635-200 (Personnel Separations).

8.  On 22 July 1983, his senior commander approved a bar to reenlistment against him.

9.  On 22 July 1983, his immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation 635-200 for ADAPCP failure.  The immediate commander cited the specific reason for this action as the applicant's poor potential for rehabilitation for alcohol or drug abuse and continued abuse rendered him an alcohol or drug abuse rehabilitation failure.

10.  On 22 July 1983, he acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for ADAPCP failure, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He further indicated he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and he elected not to submit a statement on his own behalf.

11.  On 26 July 1983, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of ADAPCP rehabilitation failure and recommended a General Discharge Certificate.

12.  On 3 August 1983, the separation authority approved the applicant's discharge under the provisions of chapter 9 of Army Regulation 635-200 and directed the applicant be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 16 August 1983.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a characterization of service of general under honorable conditions by reason of being a drug abuse rehabilitation failure.  This form further confirms he completed a total of 1 year, 10 months, and 9 days of creditable military service.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  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 Soldiers 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.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in an entry-level status and an uncharacterized description of service is required.  However, an honorable discharge is required if restricted-use information was used.

16.  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.

17.  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 result was not scientifically or legally supportable for use in disciplinary or administrative actions.

18.  Subsequently, the Deputy Chief of Staff for Personnel (DCSPER) 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.  In the applicant's case, the review team discovered one instance of positive urinalysis processed on the specimen submitted by the applicant on 9 June 1983.  The team specifically examined the test results and determined that both the scientific test procedures and the supporting chain of custody documents used were supportable.  Consequently, a conclusion that the applicant's urine specimen contained illegal drugs would be legally and scientifically supportable.

19.  Beginning in July 1984, a program was instituted whereby DCSPER notified all persons whose test results had been reviewed by the review team that they had the right to apply to this Board to request correction of any error or injustice which may have resulted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The evidence of record shows the applicant suffered from an alcohol and/or drug abuse problem.  Subsequent to an alcohol incident in the barracks, he was provided with the opportunity to overcome his problem through counseling and referral to and enrollment in the ADAPCP; however, he showed poor rehabilitation potential in that he tested positive for THC.  He was therefore declared an ADAPCP rehabilitation failure and accordingly his immediate commander initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The urinalysis of the specimen submitted by the applicant on 9 June 1983 was both supportable chemically and legally and could be properly used as a basis for disciplinary or unfavorable administrative action.

4.  Based on his record of ADAPCP failure, alcohol-related incident, positive drug test, a bar to reenlistment, and an Article 15, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, his service does not warrant an honorable discharge.

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)                                         AR20100012492



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ABCMR Record of Proceedings (cont)                                         AR20100012492



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