IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100023975 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that his discharge should be upgraded to an honorable discharge because as a Soldier he lived a life focused on striving for perfection which involved strenuous martial arts training and perpetual attention to the most minute detail.  Consequently he received a 100% rating for inspection of the arms room, an Army Achievement Medal for pipe fitting and plumbing, and he was promoted to the pay grade of E-5 within 5 years.  He goes on to state his martial arts training led to strains that were treated with Ibuprofen and he was submitted to a surprise drug test where he tested positive for marijuana and was discharged for misconduct – commission of a serious offense.  He concludes by stating that he has submitted evidence to support his exemplary performance as a Soldier and has included a document to show that a small amount of ibuprofen can cause a false positive for marijuana.

3.  The applicant provides:

* Certificates for awards of the Army Commendation Medal, Good Conduct Medal, and two Army Achievement Medals
* Two Certificates of Achievement
* A Certificate of Training
* A cover letter Promotion Board Proceedings
* A copy of his DA Form 2A (Personnel Qualification Record – Part I)
* A copy of an article titled “Drug Testing 101”
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 10 April 1986 for a period of 4 years, training as a plumber, and assignment to Korea.  He completed his one-station unit training (OSUT) at Fort Leonard Wood, Missouri and was transferred to Korea where he served a 1-year tour and was then transferred to Fort Riley, Kansas.  He was advanced to the pay grade of E-4 on 1 December 1988.

3.  On 12 March 1990, he reenlisted for a period of 4 years and assignment to Alaska.  He was transferred to Alaska on 2 July 1990 for assignment to an engineer company at Fort Wainwright.  

4.  The applicant tested positive for marijuana in a urinalysis conducted on 2 September and 9 October 1992.  The commander requested that the sample be retested; however, it came back positive as well.  The samples were tested at the Tripler Army Medical Center in Hawaii.

5.  The applicant met the cut-off score for promotion to the pay grade of E-5 on 1 October 1992; however, on 15 October 1992, nonjudicial punishment was imposed against him for the wrongful use of marijuana and he was reduced to the pay grade of E-1.

6.  On 5 November 1992, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for abuse of illegal drugs.   

7.  After being advised of his rights the applicant declined to consult with counsel, waived all of his rights and elected not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation and directed that the applicant be issued a General Discharge Certificate.
9.  Accordingly, he was discharged under honorable conditions on 16 November 1992 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – commission of a serious offense.

10.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.     

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.  Alaska State Law provides that it is legal for persons residing in Alaska to legally possess less than 1 ounce of marijuana in a home or residence.  Possession of one to four ounces constitutes a misdemeanor punishable by 90 days in jail and/or a $1,000 fine.  Possession of four or more ounces constitutes a felony punishable by up to 5 years in prison and/or up to $50,000 in fines.  However, this does not apply to personnel under military jurisdiction and who are subject to military law.

14.  Department of Defense Instruction (DODI) 1010.6 implements the Technical Procedures for the Military Drug Testing Program.  It provides, in pertinent part, that after samples arrive at the laboratory they undergo an initial immunoassay (EMIT) screening (using the Olympus AU-800 Automated Chemistry Analyzer).  Those that test positive for the presence of drugs at this point undergo the same screen once again.  Finally, those that come up positive during the two screens are put through a much more specific gas chromatography/mass spectrometry (GS/MS) test.  This test can identify specific substances within the urine sample.  Even if a particular drug is detected, if the level is below a certain threshold, the test result is reported back to the commander as negative.  A variety of over-the-counter medications can cause false positives on the EMIT screening but not on the GS/MS test.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.
 
3.  The applicant’s contention that his positive urinalysis results were the result of his taking Ibuprofen has been noted and found to lack merit.  While it is possible for Ibuprofen to cause a false positive in an initial (EMIT) screen for marijuana and its derivatives, DOD testing procedures require such samples to undergo a much more intensive GC/MS tests that would positively rule out the Ibuprofen as a cause for a positive result.  In other words, if Ibuprofen was the cause of the positive results, it would have been reported as being negative for drugs.

4.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to the nature of his offense.  It also appears the commander took the applicant's record of service into consideration when he directed that the applicant be issued a discharge under honorable conditions.  The applicant’s overall service simply does not rise to the level of a fully 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)                                         AR20100023975



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ABCMR Record of Proceedings (cont)                                         AR20100023975



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