IN THE CASE OF

		BOARD DATE:    23 July 2014

		DOCKET NUMBER:  AR20130021558


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 an upgrade of his discharge, from an under honorable conditions (general) discharge to an honorable discharge.

2.  The applicant states at the time of his testing, the testing procedures did not meet scientific or legal requirements.  Now, as a recovery house manager, he has been sober for over 18 years and he has received a counseling degree.  He has helped others with alcohol and drug dependence.

3.  The applicant provides:

* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* an undated letter from the Office of the Deputy Chief of Staff for Personnel (DCSPER), Headquarters, Department of the Army (HQDA), Washington, D.C. (Subject: Correction of Military Records, Positive Urinalysis Tests during the Period 27 April 1982 through 31 October 1983)
* a letter from his church, St. Martha's Catholic Parish, Uniondale, NY, dated 23 October 2011

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.  On 2 February 1982, the applicant enlisted in the Regular Army.  He completed his initial entry training and was awarded military occupational specialty 22L (Nike Test Equipment Repairer).

3.  On or about 4 February 1983, he was assigned to Headquarters and Range Support Battery, Range Command, Fort Bliss, TX.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

4.  On 8 September 1983, during a random drug test, he provided a urine specimen that later tested positive for Tetrahydrocannabinol (THC), a narcotic.

5.  On 13 October 1983, he was counseled by his immediate commander due to a urine specimen he provided that tested positive for THC.  He was informed that he was being command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), and that continued abuse of drugs or alcohol would result in either punishment under the Uniform Code of Military Justice (UCMJ) or administrative separation. 

6.  His record contains an undated letter from the Behavioral Science Specialist at Headquarters, U.S. Army Air Defense Center Fort Bliss, TX, addressed to the his immediate commander.  This letter provided the following details:

* he was referred to the ADAPCP for a positive urine specimen on 14 March 1984; he was enrolled in the ADAPCP and was making satisfactory progress until 20 July 1984
* on 20 July 1984, his commander called a rehabilitative team meeting because of a second positive urine specimen
* his commander stated that no action would be taken until after the urine specimen came back from the lab, at which time he would be declared a rehabilitative failure
* the ADAPCP staff felt he was given sufficient time to correct his drug problem, and future rehabilitative efforts would be futile
* he was recommended for administrative separation
7.  On 2 August 1984, he underwent a mental status evaluation, wherein he was determined to be mentally responsible, with the mental capacity to understand and participate in any administrative proceedings.

8.  On 17 September 1984, he accepted nonjudicial punishment (NJP), under the provision of Article 15 of the UCMJ, for wrongfully using a controlled substance (marijuana) during the period 19 May 1984 through 18 June 1984; presumably, this marijuana use resulted in a second positive test result during urinalysis testing. 

9.  On 27 September 1984, while providing a urinalysis specimen, he was observed attempting to use a water bottle to fill his urine collection bottle; essentially, he was observed trying to alter his urine specimen.

10.  On 12 October 1984, he was notified that his immediate commander was initiating action to discharge him from the Army, in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9.  His commander cited his positive urinalysis tests results, recorded on 13 October 1983 and 27 June 1984, as the basis for declaring him a rehabilitative failure. 

11.  On 12 October 1984, the applicant acknowledged receipt of the notification memorandum, was advised of the basis for the contemplated separation for ADAPCP failure, the type of discharge he could receive and the possible effects of this discharge, of the procedures and rights available to him, and the effect of any action taken by him in waiving his rights.  He waived personal appearance before, and consideration of his case by, a board of officers, and he elected not to submit statements in his own behalf.

12.  On 12 October 1984, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200, chapter 9, by reason of alcohol abuse.

13.  On 29 October 1984, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 9, and directed he be furnished a General Discharge Certificate.

14.  On 6 November 1984, he was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 9, by reason of drug abuse – rehabilitative failure, and he received an under honorable conditions (general) characterization of service.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 600-85 (The Army Substance Abuse Program(ASAP); previously titled ADAPCP) prescribed the policies and procedures needed to implement, operate, and evaluate the ADAPCP.

   a. Paragraph 3-4 provided that command identification occurred when a commander observed, suspected, or otherwise became aware of an individual whose job performance, social conduct, interpersonal relations, physical fitness, or health appeared to be adversely affected because of abuse of alcohol or other drugs (apparent or suspected).  When abusers or suspected abusers were identified, they were to be interviewed by their unit commander or designated representative.  If appropriate, they were to be referred to the ADAPCP for an initial screening interview.

   b. Paragraph 3-5 provided that when a service member had a positive urinalysis as a result of drug screen testing, mandatory referral for ADAPCP screening and medical evaluation was required to determine whether the positive urinalysis was the result of administrative error, medically prescribed use of the substance, or actual drug abuse.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

a.  Chapter 9 contains the authority and outlines the procedures for discharging Soldiers 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.  Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter will be characterized as honorable or under honorable conditions (general), unless the Soldier is in entry-level status and an uncharacterized description of service is required.

b.  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.  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.

18.  In October 1983, The Surgeon General of the Army directed that a panel of civilian and military chemists and lawyers review the operations and procedures of all Army and Air Force drug testing laboratories.  As part of this inquiry, the panel was charged to review a representative number of previously reported positive urinalysis test results from each laboratory to determine if these results were scientifically and legally supportable.

19.  On 12 December 1983, the panel rendered its report, in which it 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 administrative actions.

20.  Subsequently, the DCSPER established a team of military chemists and lawyers, called the “Urinalysis Records Review Team (URRT),” for the purpose of reviewing the available records of all positive urinalysis results reported from 27 April 1982 through 31 October 1983.  The URRT report prepared by this team includes the urinalysis specimen provided by the applicant on 8 September 1983.

21.  The URRT specifically examined the test results of the specimen provided by the applicant on 8 September 1983 and determined that either the scientific test procedures or the supporting chain of custody documents used, or both, were deficient for that specimen.  His second positive test specimen, tested on or about 27 June 1984, was not reexamined to determine its chemical or legal sufficiency.

22.  Beginning in July 1984, a program was instituted whereby DCSPER notified all persons whose test results had been reviewed by the review team that they 

had the right to apply to this Board to request correction of any error or injustice which may have resulted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because at the time he was administered urinalysis tests, the existing testing procedures did not meet the scientific or legal requirements for use in disciplinary or administrative actions.  His contention is noted.

2.  The evidence of record shows he provided an initial positive urinalysis specimen on 8 September 1983, and that specimen was either scientifically or legally unsupportable and could not rightfully serve as a basis for adverse administrative or disciplinary actions.  In his case, it appears that his first positive urinalysis result precipitated his enrollment in the ADAPCP, which he did not contest at the time.

3.  He was provided an opportunity to overcome his drug abuse problem, including counseling and enrollment in the ADAPCP subsequent to an alcohol-related incident; however, he showed poor rehabilitation potential.

4.  In June 1984, while enrolled in the ADAPCP, he provided another positive urinalysis specimen. In September 1984, he attempted to alter another specimen he was directed to provide.  When viewed in totality, the evidence suggests he suffered a legitimate drug abuse problem.  Following this incident, he was declared an ADAPCP rehabilitation failure.

5.  Accordingly, his immediate commander initiated separation action against him, based on his rehabilitative failure.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  There does not appear to be an error or an injustice in his discharge.

6.  Based on his record of ADAPCP failure and at least one instance of NJP, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also rendered his service unsatisfactory; therefore, his service does not warrant an honorable discharge.

7.  In view of the foregoing, there is an insufficient basis to grant relief in this case.

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)                                         AR20130021558



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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