IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100026535 


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 correction of item 28 (Narrative Reason for Separation) and as a result correction of item 26 (Separation Code) and item 27 (Reenlistment Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He also requests, in effect, restoration of a loss of pay.

2.  The applicant states:

* His narrative reason for separation should be changed to "Convenience of the Army" instead of "Alcohol Abuse Rehabilitation Failure" and, as a result, change of his separation code and RE code as appropriate
* No supportable urinalysis existed to enroll him in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) 
* The first legal urinalysis was given after he was referred to the ADAPCP solely on the basis of unjustifiable testing
* His losses involved in the unjust nonjudicial punishment (NJP) imposed on him were from 12 July 1983 to 26 October 1983
* A loss of pay was forfeited as a result of the NJP for unjust faulty urinalysis testing  and he should be compensated
* To date, he has yet to receive restoration of any rights, privileges, and property lost as a result of the NJP
* He never received compensation for the amount of time he falsely spent as a private (PV1)/E-1 when he should have never been reduced in rank/grade to begin with


* He never received the pay that was withheld from his check during the two months he was punished and had to do extra duty
* He believes he is entitled to compensation and any interest that may have incurred since that time
* He also believes he should be compensated for the mental distress he has had over this situation

3.  The applicant provides:

* His original DD Form 214
* His current DD Form 214
* Brief, dated 13 July 2010
* Army Board for Correction of Military Records (ABCMR) Proceedings, Docket Number AC88-08220, dated 19 April 1989
 
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 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 16 September 1982 for a period of 4 years.  He completed his training and was awarded military occupational specialty 13B (cannon crewman).  

3.  His ABCMR Proceedings, Docket Number AC88-08220, dated 19 April 1989, state:

	a.  While on active duty the applicant participated in the Army's drug testing program.  The specimens he submitted on 9 and 16 May 1983 were tested by urinalysis and found to contain evidence of illegal drugs.

	b.  On 20 June 1983, he was referred for treatment in the ADAPCP.


	c.  On 30 June 1983, he submitted a positive urinalysis for illegal drugs.  As a result, he was declared a rehabilitation failure.  

	d.  On 12 July 1983, NJP was imposed against him under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) based on the urinalysis of the specimen he submitted on 16 May 1983.

	e.  He was recommended for discharge under the provisions of Army Regulation 635-20 (Personnel Separations - Enlisted Personnel), chapter 9, as an alcohol abuse rehabilitation failure.  The separation authority approved the recommendation and directed the issuance of a general discharge.

	f.  He was discharged on 26 October 1983 under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse rehabilitation failure and issued a General Discharge Certificate.  He had served 1 year, 1 month, and 11 days of creditable active service.

	g.  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.  Subsequently, the Deputy Chief of Staff for Personnel established a team of military chemists and lawyers.  The team reviewed available records of all positive urinalysis results reported from 27 April 1982 through 31 October 1983.

	h.  The review team specifically examined the test results of the specimens submitted by the applicant on 9 and 16 May 1983 and determined that in each case either the scientific test procedures or the supporting chain of custody documents used, or both, were deficient.  Consequently, a conclusion that those urine specimens contained illegal drugs would not be legally and/or scientifically supportable.

	i.  The specimen given on 30 June 1983 was found to have met the standards established by the Blue Ribbon Panel.  Accordingly, that urinalysis was determined to be supportable and sufficient to serve as the basis for declaring him a rehabilitation failure.

	j.  On 19 April 1989, the ABCMR upgraded his general discharge to an honorable discharge; deleted from his military personnel and medical records any and all references to the positive urinalyses of the specimens he submitted on 9 and 16 May 1983; set aside the NJP and restored all rights, privileges, and property lost as a result of the NJP. 


4.  Item 25 (Separation Authority) of his current DD Form 214 shows the entry "AR [Army Regulation] 635-200, CHAP [Chapter] 9."  Item 26 shows the entry "JPD."  Item 27 shows the entry "RE 3 3C."  Item 28 shows the entry, "ALCOHOL ABUSE REHABILITATION FAILURE."

5.  Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), paragraph 3-5, required referral to the program on the basis of a positive urinalysis.  Paragraph 3-4 permitted a Soldier's referral for rehabilitation screening when a commander suspected drug abuse was impacting a Soldier's job performance.

6.  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.

7.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code JPD is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 9, by reason of alcohol abuse rehabilitation failure.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JPD.

8.  Army Regulation 635-200 further states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

	c.  RE-3C applies to Soldiers who have completed over 4 months of service who do not meet the basic eligibility pay grade requirements or who have been denied reenlistment under the qualitative retention process.  They are ineligible for enlistment unless a waiver is granted.

9.  Army Regulation 601-280 (Army Reenlistment Program), in effect at the time, prescribed eligibility criteria and options available in the Army Reenlistment Program.  Chapter 2 of the regulation stated, in pertinent part, that personnel in grades E-2 and below, regardless of years of service, were not authorized reenlistment.

10.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The applicant submitted urine specimens on 9 and 16 May 1983 which were found to contain evidence of illegal drugs.  He was enrolled in the ADAPCP on 20 June 1983 for treatment and rehabilitation at that time.  

2.  A review team subsequently examined the test results of the two specimens he submitted in May 1983 and determined they were deficient and a conclusion that those urine specimens contained illegal drugs would not be legally and/or scientifically supportable.  However, those test results still gave his commander enough to suspect drug use which, by its nature, adversely affects a Soldier's ability to fully perform his duties (even if one only considers the 24/7 aspect of military service). 

3.  He contends his narrative reason for separation should be changed to "Convenience of the Army" and his separation code should be changed to reflect the same.  However, his separation code and narrative reason for separation were administratively correct and in conformance with applicable regulations at the time of his separation.  There is an insufficient basis in which to grant his request to change his separation code, RE code, or narrative reason for separation.

4.  The RE-3 and RE-3C entries shown in item 27 of the applicant's DD Form 214 are correct and were applied in accordance with the applicable regulations.  Therefore, there is no basis for granting the applicant's request to change his
RE code.

5.  He contends a loss of pay was forfeited and he should be compensated.   However, there is no evidence of record and he provided no evidence which shows he did not get his pay back.  The ABCMR does not pay damages (e.g., mental distress or interest).

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)                                         AR20100026535



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ABCMR Record of Proceedings (cont)                                         AR20100026535



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