BOARD DATE:	  19 March 2014

		DOCKET NUMBER:  AR20130010202 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he was discharged for failing a drug test, yet he was given a general under honorable conditions discharge.  In his opinion, and the opinion of his military counsel, the drug test was faulty.  The lab, COMPUCHEM Labs of Raleigh, NC, showed his drug test results as negative, then they decided to re-test the same urine sample, which resulted in a positive reaction.  The lab could not give any reasonable answer as to why they tested it a second time, or how it could be negative the first time then positive the second time.  His company commander agreed there was a discrepancy, but was still going to allow his discharge.  However, he gave him a general discharge under honorable conditions so he could get it upgraded in the future.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 19 March 1990, reissued on 2 August 2004. 

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 16 January 1987, he enlisted in the Regular Army.  The highest grade he held was specialist/pay grade E-4.

3.  On 24 July 1989, he accepted nonjudicial punishment (NJP) for wrongfully communicating  that there was a bomb, set to explode at 2300 hours, in the barracks, which constituted a threat to harm a person or property by means of explosives.

4.  On 24 January 1990, his commander was notified of the results of the applicant's positive urinalysis result.  The DA Form 5180-R (Urinalysis Custody and Report Record) identified the applicant by his social security number.  In the column entitled Laboratory Results the entry "NEGATIVE" was stamped but was lined through, initialed "MR," and dated 1/23/90 (23 January 1990).  The entry "POS THC" (positive tetrahydrocannibinol) was then stamped in the block.  The form is dated 23 January 1990 and signed by M___ R_____, laboratory certifying scientist.

5.  On 30 January 1990, he accepted NJP for wrongfully using marijuana on or between the dates of 5 January through 16 January 1990.

6.  On 31 January 1990, his commander notified him that action was being initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c as a result of a pattern of misconduct based on his NJP's for communicating a bomb threat and a positive test for THC.  The commander recommended he receive a general discharge.  The commander advised the applicant of his right to:

* consult with counsel
* obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action
* submit statements in his own behalf
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

7.  On 2 February 1990, after being advised by his consulting counsel of the basis for the contemplated action to separate him, he requested legal counsel and stated he would submit a statement in his behalf.

	a.  He understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that, as the result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

	b.  He understood he could withdraw his waiver of any of his rights at any time prior to the date the discharge authority directed or approved his discharge.

	c.  He understood he would be ineligible for enlistment in the U.S. Army  for a period of 2 years after discharge.

8.  On 4 February 1990, he received a mental status evaluation.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

9.  On 13 February 1990, he submitted a statement in his own behalf.  He stated:

	a.  He had not willingly or knowingly smoked any marijuana or taken any other kind of drugs while he had been in the Army.  He believed the only way he could have turned up positive on the urinalysis test was by eating some type of food item with the drug cooked into it.

	b.  He, along with his counsel, tried to find out why the paperwork was stamped "Negative," then re-stamped "POS THC," with no answer.  He and his counsel tried to get a nanogram (one billionth of a gram) count from the urine sample, again with no answer.

	c.  After calling COMPUCHEM, he and his counsel were unable to find out any information regarding his case.

	d.  He did not wish to be separated from the Army and preferred to finish the remaining 11 months of his enlistment.  He requested an honorable discharge so he could keep his GI Bill and continue his education. 

10.  On 26 February 1990, his commander recommended that he be eliminated from the service before the expiration of his term of service.  He recommended the applicant receive a general discharge.  The Group Judge Advocate determined the applicant's separation to be legally sufficient.  

11.  On 28 February 1990, the appropriate authority approved the recommendation for discharge and directed he be issued a general discharge under honorable conditions.

12.  On 1 March 1990, the Group Judge Advocate counseled the applicant in the presence of a noncommissioned officer concerning the results of his urinalysis testing done on 16 January 1990 and his questions he addressed in his statement submitted on 13 February 1990.

	a.  The applicant's test results were accidently stamped as negative and then changed to positive.  The mistake was initialed and dated by the COMPUCHEM worker who made the mistake and an affidavit was included in the packet which certified the worker made an administrative oversight and that the mistake did not affect the accuracy of the results.

	b.  The government is required to provide the drug testing packet to a Soldier who requests the results of the test.  However, the applicant or his Trial Defense Counsel did not request a drug packet from COMPUCHEM.  The packet requested by the government showed that on the RIA test the cut off value was 100 NG/ML and the applicant tested at 125.3.  The GC/MS confirmatory test showed the specimen was positive for THC at a level of 34.2 NG/ML (nanograms per milliliter) and the confirmation cut off value was 15 NG/ML.

13.  On 19 March 1990, he was discharged under the provisions of 
paragraph 14-12c of Army Regulation 635-200.  The reason shown on his 
DD Form 214 was "Misconduct - Abuse of Illegal Drugs."  He completed a total of 
3 years, 2 months, and 4 days of active service that was characterized as under honorable conditions (general).

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 11 August 2004, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as general under honorable conditions.  However, the ADRB determined the narrative reason on his DD Form 214 for his discharge should be changed to read "Misconduct" in accordance with current regulations.


15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 14-12c(2) stated that first-time offenders in grades E-1 - E-4 could be processed for separation as appropriate.  The separation reason in all separations authorized by this paragraph was "misconduct - abuse of illegal drugs."  The issuance of a discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under chapter 14.  

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  He contends his drug test results were negative and when re-tested they came up positive.  He contended in his statement submitted at the time of his discharge that he and his counsel were unable to get an explanation for this and they were unable to obtain the test results.  

2.  The Group Judge Advocate's letter, dated 1 March 1990, counseled the applicant concerning his results of his urinalysis.

	a.  His test was mistakenly marked negative and the error was properly corrected, initialed, and the correct entry entered by the COMPUCHEM worker.  The error was strictly administrative in nature and there is no evidence to show it was re-tested.

	b.  The applicant and his counsel did not request the drug testing packet.  Upon receiving the packet at the government's request, his RIA test showed 125.3 when the cut off value was 100 NG/ML and his THC level was 34.2 when the cutoff was 15 NG/ML.

3.  In view of the above, his contentions are not supported by the evidence.

4.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The records contain no indication of procedural or other errors that would have jeopardized his rights.  The reason shown on his DD Form 214 for his discharge was directed by the regulation in effect at the time for personnel discharged under Army Regulation 635-200, paragraph 14-12c.  ADRB changed the narrative reason to conform to current regulations.

5.  The fact that the narrative reason was changed on his DD Form 214 by the ADRB does not change the fact that he was discharged for drug abuse.  He accepted NJP on two occasions for communicating a bomb threat and illegal use of marijuana.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

6.  His commander obviously took into consideration his 3 years of service in that he recommended a general discharge under honorable conditions when a discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under chapter 14.

7.  In view of the above, there is an insufficient basis to upgrade his 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)                                         AR20130010202



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ABCMR Record of Proceedings (cont)                                         AR20130010202



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