IN THE CASE OF:	

		BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130012747 


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 correction of his U.S. Army Reserve (USAR) discharge orders to show he received an honorable discharge. 

2.  The applicant states:

	a.  He served in the Regular Army from 15 October 1979 to 15 October 1982 and attained the rank/grade of specialist four (SP4)/E-4.  In 1983, he enlisted in the USAR and was forced out in 1994 in the rank/grade of sergeant first class (SFC)/E-7 for what was alleged to be a positive drug test.  He knew the drug test was wrong so he went to the nearest clinic and asked for a drug screening test.  However, he had not been given any information from the Army on what he had tested positive for so he did not know what to ask to be screened for.

	b.  He contacted the laboratory that conducted the screening and received results that showed he tested positive for tetrahdrocannabinol (THC), the active ingredient in marijuana.  The laboratory sent him paperwork that indicated there was an error on the drug screening.  It stated it was an administrative error that in no way affected the results but it could not be corrected by quality control due to the sample being poured.

	c.  The chain of custody log shows the urine sample had been in storage until 4 June 1993 when Dr. ABW took it out for verification.  Page 33 of the log shows it tested positive on 24 May 1993 and the entry was crossed out on 1 June 1993.  Page 36 of the log shows on 2 June 1993 it was noted as negative and, on 4 June 1993, it was crossed out and positive was handwritten on it.  How did it test positive on 24 May 1993 when the log shows it was in storage?  Then it was retested on 2 June 1993 and noted as negative while still in storage.  The letter from the laboratory showed Dr. ABW was no longer employed at the Forensic Toxicology Drug Testing Laboratory (FTDTL), Fort George G. Meade, MD, and he was unavailable to sign the Memorandum for Record (MFR).

	d.  We all know in a court of law any results with a positive or negative that contain an error would be thrown out of court.  As soon as he found out what the test results were, he went back to the clinic and was tested for THC.  The test came out negative as he knew it would.

	e.  When he appeared at the administrative board hearing, he was warned by the judge not to bring up the screening error.  That was not a fair hearing.  The board's findings were he would be issued a general discharge for his USAR service for something he did not do.  He moved back home to North Carolina where he is currently employed by the Department of Safety.  He had only 5 years left to complete 20 years of service.  He tried to reenlist in the Army but he was denied enlistment.  He is now 50 years of age and in good shape and would like his records corrected at this time.

3.  The applicant provides orders, two MFRs, DA Form 5180-R (Urinalysis Custody and Report Record), two FTDTL Forms 5180-1-R (Log Sheets), a page titled Run Identification Worksheet, a page titled Forensic Drug Screen Report, and an email.

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.  Having had prior active service, the applicant enlisted in the USAR on 10 October 1983.  He was promoted to the rank of SFC on 1 July 1990. 
 
3.  On 15 May 1993, he was assigned to the 76th Training Division, Hartford, CT, in a student status to attend Drill Sergeant School.

4.  His records contain a DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 10 July 1993, wherein it stated he was disenrolled from the school on 10 July 1993 for administrative reasons.  In accordance with governing regulations, drill sergeant candidates must be administered a urinalysis test and Soldiers who test positive will be removed from the school.  The Soldier was released to his unit on 10 July 1993.

5.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his records contain Orders 68-7, dated 13 May 1994, issued by Headquarters, 76th Training Division, West Hartford, CT, wherein it shows he was discharged from the USAR, effective 16 May 1994, with a General Discharge Certificate, in the rank of SFC.

6.  The applicant provides:

	a.  An MFR, dated 21 May 1993, from Quality Control FTDTL, wherein it stated on 21 May 1993, Ms. PFU did create batch R0000354 for rescreen of the initial THC screen on that date.  The only way to reprint a specific created run is through the create/modify screen and when she reprinted R0000354, she inadvertently modified it to B0000354.  This could not be corrected to R0000354 because the run was "poured."  Therefore, it will always show as B0000354.  It is unclear how this relates to the applicant's case as additional documents he provides show his urine specimen was part of batch C0000434).

	b.  A forensic drug screen report, dated 18 August 1993, from Tru-Med of New Bedford, MA, wherein it stated they collected a urine specimen on 17 August 1993 from an individual with the same social security number (SSN) as the applicant and it tested negative for THC on 18 August 1993.

7.  He also provides an MFR, dated 20 December 1993, from Litigation Support, FTDTL, wherein it stated:

	a.  A litigation packet for specimen M9305-086-240 was certified on 30 August 1993.  An error was noted on page 34 of the packet review sheet for confirmation batch C0000434.  Dr. ABW scheduled specimen M9305-086-240 for "re-extraction REX" on 1 June 1993.  When she annotated the specimen number, she inadvertently annotated an incorrect number.  This administrative error in no way affected the scientific validity or forensic supportability for specimen M9305-086-240. 

	b.  Page 33, FTDTL Form 5180-1-R, dated 24 May 1993, shows batch C0000434 has a properly documented correction that the correct results for specimen M9305-086-240 as "REX."  Page 36, FTDTL Form 5180-1-R, dated 4 June 1993, shows batch C0000434 has a properly document correction that the correct results for specimen M9305-086-240 as "positive for THC."

	c.  Both the original certification of the results by Dr. ABW on 4 June 1993, as documented on DA Form 5180-R, and reconfirmation of the results during the certification on 30 August 1993 by Ms. AMG, verify that the testing of specimen M9305-086-240, [from an individual with the same SSN as the applicant] was properly conducted and accurately reported as "positive for THC."  

8.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 135-178 (Army National Guard and Army Reserve -Enlisted Administrative Separations) provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  Paragraph 2-9, states the honorable characterization is appropriate when the quality of the Soldier'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 specific facts and circumstances surrounding the applicant's discharge processing from the USAR are not known.  However, his records show the applicant was discharged from the USAR on 16 May 1994 and issued a General Discharge Certificate.  

2.  The available record shows the applicant received an AER and was disenrolled from Drill Sergeant School, in July 1993, due to testing positive on a unit urinalysis test.  In addition, the applicant himself stated he appeared before an administrative separation board due to testing positive for marijuana and the board recommended he be discharged from the USAR and issued a general discharge.

3.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and that the type of discharge directed was appropriate considering the available facts of the case.  

4.  His contention that records from the testing laboratory contained errors is noted; however, the records he provided clearly show they were administrative errors only and verified his specimen did test positive for marijuana on 4 June 1993.  The fact that a second specimen tested negative for marijuana in a private laboratory over 2 months later, does not negate the initial test results.

5.  The applicant's available record shows he was a senior noncommissioned officer and he tested positive for marijuana during his period of USAR service.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable 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)                                         AR20130012747



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ABCMR Record of Proceedings (cont)                                         AR20130012747



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