IN THE CASE OF:	  

		BOARD DATE:	    21 April 2011

		DOCKET NUMBER:  AR20100024847 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that on the morning of the urinalysis drug test he had unknowingly used the restroom.  He was ordered to provide a urine sample and physically could not comply.  He remained in the squad room for nearly 6 hours and was forced to drink water.  When allowed to go the men's room, he went alone where he flushed the commode and put water into the urine sample cup.  He states, "SINCE I NEVER URINATED IN THE CUP, THERE IS NO WAY I COULD HAVE FAILED."  He now asks for an investigation into his urine specimen and the processing of his elimination.  He also states he received an Army Commendation Medal for helping to develop an Alcohol and Drug Abuse Prevention and Control Program and he received a favorable enlisted evaluation report 10 days before his unfavorable separation.  

3.  The applicant provides a Noncommissioned Officer Enlisted Evaluation Report (NCOER) signed on 9 July 1984 and an Army Commendation Medal certificate, dated 16 October 1980. 

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.  With prior enlisted service in the U.S. Marine Corps, the applicant enlisted in the U.S. Army Reserve in the rank of private first class (PFC)/pay grade E-3.  He enlisted in the Regular Army on 11 August 1978 in the rank of sergeant (SGT)/pay grade E-5.  His military occupational specialty was 11B (Infantryman).  The highest rank he attained was staff sergeant (SSG)/pay grade E-6.

3.  The applicant was convicted by a special court-martial on 26 August 1982 for failure to go to his appointed place of duty, for failure to go at the time prescribed to his appointed place of duty and disobeying a lawful order.  His sentence consisted of reduction to pay grade E-4 and forfeiture of $250 per month for 3 months. 

4.  On 18 October 1983, he accepted nonjudicial punishment for operating a private motor vehicle while drunk.  His punishment consisted of reduction to the pay grade of E-3, forfeiture of $200 per month for one month and 30 days extra duty.  The reduction and forfeiture of pay were suspended to be automatically remitted if not vacated before 18 January 1984.  

5.  On 16 January 1984, the applicant was promoted to the rank of SGT/grade pay E-5 in MOS 11B with a date of rank of 3 October 1983 by Orders 10-191 issued by Headquarters, 1st Cavalry Division.

6.  On 17 April 1984, the applicant’s commander notified him that action was being initiated to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12 for misconduct.  The justification for initiating this separation action was for a positive urinalysis on 17 January 1984. The applicant acknowledged receipt of this separation notification.

7.  The commander advised him of his right to be represented by counsel, to submit written statements in his own behalf, to obtain copies of supporting documents, to waive any of these rights, or to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  He was further advised that enlisted Soldiers in pay grades E-5 to E-9 who are identified as first time illegal drug abusers will be processed for separation.
8.  On 19 April 1984, he consulted with counsel.  He waived his right to a board of officers and elected to submit personal statements on his own behalf.  He indicated he understood that he could expect to encounter prejudice in civilian life with a general discharge under honorable conditions or an under other than honorable conditions discharge.  He further acknowledged he could apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge and that he would be ineligible to enlist in the U.S. Army for a 2-year period after his separation.

9.  Within his personal statement, the applicant stated:

	an investigation was initiated for the purpose of eliminating me from the Army for a positive urinalysis . . . to ensure there (was) no mistake, I respectfully request the result be checked again to include testing of the sample submitted by me on 16 January 1984.

10.  The applicant continued his statement by saying, in effect, his company commander initiated an investigation into his alleged misconduct that included sleeping while on charge of quarters (CQ) duty, randomly submitting him to a breathalyzer test which was negative for alcohol, and being absent from his appointed place of duty.  The applicant stated he was not found guilty of these offenses.  However, he was involuntarily transferred to a sister company within his battalion.  He concluded his statement by stating, "I DON'T UNDERSTAND WHY IT IS SO IMPORTANT I BE ELIMINATED FROM THE ARMY NOW . . . ALL I AM TRYING TO DO IS MY JOB TO THE BEST OF MY ABILITIES."

11.  On 19 April 1984, the applicant's commander recommended him for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct.  

12.  On 2 July 1984, the approval authority approved the applicant's discharge and directed issuance of an under other than honorable conditions discharge.  In addition, he denied the applicant a rehabilitative transfer.
 
13.  On 19 July 1984, the applicant was discharged.  He was issued a DD Form 214 confirming he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct with an under other than honorable conditions discharge.  

14.  The applicant applied to the ADRB on 4 October 1984.  By unanimous decision, the ADRB denied the applicant's request to upgrade his discharge.  However, the ADRB did vote to change the reason for his discharge from 
paragraph 14-12b, Army Regulation 635-200, misconduct—pattern of misconduct to paragraph 14-12b, Army Regulation 635-200, misconduct—drug abuse. 

15.  The applicant provided an Army Commendation Medal certificate that shows he received this award on 16 October 1980 for meritorious service as the law enforcement specialist helping to improve existing drug and alcohol suppression and identification efforts.  He also provided an NCOER, dated 9 July 1984, that shows he was a competent and professional Soldier.  His overall NCOER evaluation score was 122 out of 125 points.

16.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

   d.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice (UCMJ).  The maximum punishment for wrongful use of a controlled substance is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 2 years, reduction to the lowest enlisted grade and total forfeiture of all pay and allowances.
   e.  Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity deciding cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  
   
DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant's company commander initiated separation action against him for wrongful use of an illegal substance.  In his personal statement to the separation authority, he never once indicated that he did not urinate into the specimen cup during the urinalysis test in 1984.  Now, nearly 30 years later, he adamantly states he did not urinate into the cup; rather, he alleges he used water from the commode.  Since he used water, he wonders how his urinalysis test could be positive for an illegal substance.  

2.  As the ABCMR is not an investigative body, it decides cases based on the evidence of record found within a former service member's record and evidence submitted by them with their application.  As such, the ABCMR will not address the applicant's request to initiate an investigation into his urinalysis test.  However, it must be pointed out he states in his current application that he never urinated into a specimen cup, yet in his initial statement submitted in 1984, he acknowledged he submitted a urine sample.  

3.  A positive urinalysis is a violation of the UCMJ with a maximum punishment of a punitive discharge, confinement for 2 years, reduction to the lowest enlisted grade, and total forfeiture of all pay and allowances.  

4.  The applicant's chain of command showed him leniency by administratively discharging him under the provisions of Army Regulation 635-200.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

6.  In view of the above, there is insufficient evidence to upgrade the applicant's under other than honorable conditions 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)                                         AR20100024847





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ABCMR Record of Proceedings (cont)                                         AR20100024847



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