IN THE CASE OF:	  

		BOARD DATE:  24 July 2012

		DOCKET NUMBER:  AR20120002328 


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:

* Reference to the Article 15, nonjudicial punishment (NJP), be removed from his records
* Reinstatement of his rank/grade of sergeant (SGT)/E-5
* Change of his reentry eligibility (RE) code from RE-3 to RE-1
* Payment of any pay and allowances due as a result of this correction

2.  The applicant states:

* In April 2008, the Army Board for Correction of Military Records (ABCMR) granted him relief by deleting from his records any reference to a urinalysis specimen tested on 6 April 1983
* The Board voided his chapter 9 discharge with a general discharge and issued him an honorable discharge
* The Board also granted him service credit and pay through the original expiration of his term of service (ETS) date
* The reason for the correction was that the scientific test results of the urine specimen were allegedly illegal
* Based on the results of the 6 April 1983 urine sample, his commander imposed NJP
* He was coerced into signing an agreement to accept the NJP for the wrongful use of marijuana which led to his reduction to specialist four (SP4)/E-4, a forfeiture of pay for 2 months, and extra duty
* Since the specimen in question was determined to be legally and scientifically unsupportable, the Article 15 that was based on the same findings should therefore be determined invalid

3.  The applicant provides:

* His original and reissued DD Form 214 (Certificate of Release or Discharge from Active Duty)
* ABCMR Record of Proceedings in Docket Number AR20080001389, dated 14 May 2008
* His DA Form 2-1 (Personnel Qualification Record)

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 25 June 1980 for a period of
4 years.  He completed training and he was awarded military occupational specialty 98C (Electronic Warfare/Signal intelligence Analyst).

3.  He was promoted to SP4/E-4 on 1 January 1982 and to specialist five (SP5)/E-5 on 1 February 1983 (with a date of rank as 21 January 1983).  Additionally, he was laterally appointed to SGT/E-5 on 9 February 1983.

4.  On 21 January 1983, he participated in a urinalysis and his urine sample tested positive for marijuana (test results issued on 16 February 1983).

5.  It appears his commander referred him for enrollment in Track II of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 17 February 1983.

6.  On 6 April 1983, the applicant again participated in a urinalysis and his urine sample tested positive for marijuana (the test results issued on 22 April 1983).
7.  On 3 May 1983, the unit commander, in consultation with the Clinical Director of the ADAPCP, declared the applicant a rehabilitation failure.

8.  On 9 May 1983, he applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on or about 6 April 1983.  His punishment consisted of a reduction to SP4/E-4, a forfeiture of $200.00 pay for 2 months, and extra duty for 45 days.  A copy of this Article 15 is neither filed in his official record nor available for review with this case.

9.  On 10 May 1983, the unit commander notified the applicant of pending separation action under the provisions of Army Regulation 635-200, chapter 9 based on drug abuse rehabilitation failure.  On 13 May 1983, the separation authority approved his discharge under the provisions of Army Regulation
635-200, chapter 9 with issuance of a General Discharge Certificate.

10.  He was accordingly discharged on 25 May 1983 under the provisions of Army Regulation 635-200, chapter 9 for drug abuse rehabilitation failure.  He served 2 years, 11 months, and 1 day of creditable active service.  His DD Form 214 shows in:

* Item 4a (Grade, Rate or Rank) and 4b (Pay Grade) - "SP4" and "E-4"
* Item 12h (Effective Date of Pay Grade) - "83  05  09"
* Item 24 (Character of Service) - "Under Honorable Conditions"
* Item 26 (Separation Code) - "JPC (JKK)"
* Item 27 (Reenlistment Code) - "RE-3"
* Item 28 (Narrative Reason for Separation) - "Drug Abuse Rehabilitation Failure"

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 was not scientifically or legally supportable for use in disciplinary or adverse administrative actions.  Subsequently, the 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.

	a.  The review team specifically examined the applicant's test results of the specimen submitted by the applicant on 21 January 1983 and determined that the scientific test procedures or the supporting chain of custody documents used, or both, were sufficient for that specimen.

	b.  The review team also specifically examined the applicant's test results of the specimen submitted by the applicant on 6 April 1983 and determined that either the scientific test procedures or the supporting chain of custody documents used, or both, were deficient.  Consequently, a conclusion that the applicant's urine specimen contained illegal drugs would not be legally and/or scientifically supportable.

12.  On 28 April 1987, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

13.  On 15 April 2008, after considering his petition, the ABCMR determined that:

* The evidence of record shows he provided two urine specimens, on 21 January 1983 and 6 April 1983.
* The positive urinalysis of the specimen he submitted on 6 April 1983 was determined to be chemically and/or legally unsupportable by the Urinalysis Records Review Team and could not rightfully serve as the basis for adverse administrative or disciplinary actions
* Continued reference to the unsupportable urinalysis was prejudicial and improper
* As a matter of justice, any and all references to the positive urinalysis of the specimen he submitted on 6 April 1983 would be deleted from his military personnel and medical records.
* His discharge was improper and should be voided because his drug rehabilitation failure was based on an unsupportable urinalysis

14.  As a result of its findings, the ABCMR recommended the applicant's record be corrected as follows:

* All references to the applicant’s separation under the provisions of Army Regulation 635-200, chapter 9 be deleted from his military personnel records
* The applicant’s discharge of 25 May 1983 be voided and the records be corrected to reflect he remained on active duty until his normal ETS date of 24 June 1984
* The applicant’s DD Form 214 be corrected to show he separated on 24 June 1984 after completing 4 years of net active service with an 

honorable discharge under the provisions of Army Regulation 635-200, chapter 5-3, by reason of Secretarial Authority, with a separation code of "JFF"
* The applicant be paid any and all pay and allowances due as a result of the above correction.

15.  On 7 January 2008, his Article 15 and separation packet were removed from his records and his original DD Form 214 was voided.  He was reissued a new DD Form 214 that shows in:

* Item 4a and 4b - "SP4" and "E-4"
* Item 12h - "1984  06  24"
* Item 24 - "Honorable"
* Item 26 - "JFF"
* Item 27 - "RE-3"
* Item 28 - "Secretarial Authority"

16.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.

	a.  Paragraph 3-6 addresses the filing of an NJP and provides that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s official military personnel file (OMPF) is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.

	b.  Paragraph 3-28 describes setting aside and restorations.  This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that 

clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

	c.  Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 (Record of Proceedings Under
Article 15, UCMJ) in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.   Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section.

	d.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

17.  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:

* 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
* 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 unless a waiver is granted

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations which identify reasons for and types of, separation from active duty.  The SPD Code of:

* "JPC" is the correct code for Soldiers separated under the provisions of Army Regulation 635-200, chapter 9, by reason of drug/alcohol rehabilitation failure
* "JFF" is the correct code for Soldiers separated by reason of Secretarial Authority
19.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers.  This cross reference table applicable at the time of his discharge shows the SPD code and a corresponding RE code.  The SPD code of:

* "JPC" has a corresponding RE code of "3"
* "JFF" has a corresponding RE code of "TBD (To Be Determined)"; the Department of the Army directive authorizing the separation program or specific separation will provide the RE code

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Article 15, this document is no longer in his OMPF.  The ABCMR directed the applicant's separation packet and allied documents, including the Article 15, be removed from his records.  As such, there is no effective relief related to this issue.

2.  Nevertheless, since the Article 15 punished him for wrongfully using marijuana on 6 April 1983 and since the specimen taken on that date was found unsupported, any punishment related to that NJP, including the reduction and the forfeiture of pay, should be set aside.  As such, his rank/grade should be reinstated to SGT/E-5 and he should receive all back pay and allowances due as a result of this correction.

3.  When his discharge was upgraded, he was assigned the SPD code of JFF.  The corresponding RE code associated with the SPD code is determined by the Secretary of the Army.  It appears the Board inadvertently overlooked this code in its original findings.  As such, his RE code should be corrected to show RE-1.

BOARD VOTE:

___X ___  ___X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from items 4a, 4b, and 12h of his reissued DD Form 214 the entries "SP4," "E-4," and "1983  05  09" and replacing them with the entries "SGT," "E-5," and "1983  02  01," respectively;

	b.  conducting an audit of his pay records by officials of the Defense Finance and Accounting Service and paying him all monies due as a result of this correction;

	c.  deleting from item 27 of his reissued DD Form 214 the entry "RE-3" and replacing it with the entry "RE-1."



      __________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)                                         AR20120002328



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ABCMR Record of Proceedings (cont)                                         AR20120002328



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