IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100026031 


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, in effect, that his general discharge be upgraded to a fully honorable discharge. 

2.  The applicant states he did not use drugs but tested positive for drugs in a "dirty" drug test and was discharged.  However, several months later he received a letter informing him that the drug tests were contaminated.

3.  The applicant provides no additional evidence with 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 in Minneapolis, Minnesota, on 8 June 1982 for a period of 3 years, training as a tactical communications center operator/mechanic, and assignment to Europe.

3.  He completed one-station unit training at Fort Sill, Oklahoma, and was transferred to Germany on 21 November 1982 for assignment to an armor company.

4.  On 5 July 1983, the applicant was referred to the Community Counseling Center for alcohol and drug abuse.  On 25 July 1983, the applicant was enrolled in the Army Drug Abuse Prevention and Control Program (ADAPCP) Track I.

5.  On 13 September 1983, nonjudicial punishment was imposed against the applicant for the wrongful use of marijuana in the hashish form on or about 4 August 1983.

6.  The applicant was enrolled in ADAPCP Track II and after attending two group sessions he stated to his counselor that he was just biding his time for his next positive urinalysis so he could be "chaptered out" of the Army.  The clinical director deemed him a rehabilitation failure and recommended that he be administratively discharged.

7.  On 18 October 1983, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, due to drug abuse rehabilitation failure.

8.  The applicant declined consultation with legal counsel and treatment in a Veterans Administration facility and elected not to submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge on 28 October 1983 and directed that he be furnished a General Discharge Certificate.

10.  Accordingly, he was discharged under honorable conditions on 10 November 1983 under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.  He completed 1 year, 5 months, and 3 days of active service.

11.  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.

12.  Subsequently, the Department of the Army 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.

13.  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.

14.  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.

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 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.

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.

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, 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.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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 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)                                         AR20100026031



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ABCMR Record of Proceedings (cont)                                         AR20100026031



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