IN THE CASE OF:	 

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140020987 


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 under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states he was discharged for a positive urine analysis test and he received a letter from the Department of the Army (DA) saying that positive urinalysis tests during the period 27 April 1982 through 31 October 1983 did not meet legal and scientific standards.  At the time he kept telling them it could not be true but they stripped him of his rank and discharged him with a discharge other than honorable.  He wants to correct his military records and upgrade his discharge to honorable.  He believes the record is incorrect because he knew at the time he could not have had a positive urinalysis because he did not use drugs.  He served our country from December 1976 until late 1983 without any problems and then all of a sudden he came up positive on a urinalysis and he got kicked out of the service.  Then he received said DA letter saying:  "Based on the panel's findings that a number of previously reported positive urinalysis test results were not scientifically or legally supportable, a team of chemists and attorneys have reviewed all available records of positive urinalysis tests reported from 27 April 1982 through 31 October 1983." 

3.  The applicant provides the DA letter. 

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.  The applicant's records show he enlisted in the Regular on 29 December 1976.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 67Y (Attack Helicopter Repairer).   He reenlisted on 29 September 1978.

3.  He served in Germany from 22 November 1978 to 17 November 1981.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, Army Good Conduct Medal, and Marksman Marksmanship Qualification Badge with Grenade Bar.

4.  He was promoted through the ranks to specialist four (SP4)/E-4 on 1 July 1978 and sergeant (SGT)/E-5 on 27 June 1979. 

5.  On 29 June 1981, in Germany, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of reduction to specialist four (SP4)/E-4. 

6.  On 8 September 1981, in Germany, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to private first class/E-3 and restriction. 

7.  On 12 November 1981, in Germany, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty, willfully disobeying a lawful order, and missing formation.  His punishment consisted of a reduction to private two (PV2)/E-2. 

8.  Following completion of his Germany tour, he was reassigned to the 4th Squadron, 12th Cavalry, Fort Polk, LA, around early December 1981.  

9.  On 19 January 1983, at Fort Polk, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of extra duty, restriction and reprimand. 

10.  He was promoted back to SP4/E-4 on 1 March 1983.

11.  On 10 August 1983, he participated in a unit urinalysis and his urine sample tested positive for marijuana. 

12.  On 29 September 1983, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana on or about 10 August 1983.  His punishment consisted of a reduction to (PV2)/E-2. 

13.  On 3 October 1983, the applicant’s immediate commander notified the applicant of his intent to initiate elimination from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unsatisfactory performance.  The immediate commander stated that the applicant had had two drug-related incidents in this unit.  This conduct is below the conduct expected of Soldiers in this unit or the Army.

14.  On 6 October 1983, the applicant acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200 .  He further waived consideration of his case by a board of officers, personal appearance before a board of officers, and elected not to submit a statement in his own behalf.  He further indicated: 

* he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he understood that in the event of the issuance of an undesirable discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life

15.  Subsequent to his acknowledgement and consult with counsel, the applicant's immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance.  His commander again pointed out that the applicant was a two-time drug offender.


16.  On 13 October 1983, the separation authority waived further rehabilitative requirements and approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance with an under honorable conditions characterization of service and he be issued a General Discharge Certificate.  The applicant was accordingly discharged on 19 October 1983.

17.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance with an under honorable conditions characterization of service.  He completed 5 year and 21 days of net active service during this period and he had 1 year and 9 months of prior service. 

18.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge processing within that board's 15-year statute of limitations. 

19.  He provides a letter from DA, Office of the Deputy Chief of Staff for Personnel.  It reads: 

	a.  In September 1983, the Department of the Army became concerned that selected urinalysis test results from the Fort Meade drug testing laboratory were not meeting legal and scientific standards for use in disciplinary and administrative actions.  On 24 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.

	b.  The panel rendered its report on 12 December 1983.  The report 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 also found that a percentage of previously reported positive urinalysis results were not scientifically or legally supportable for use in disciplinary or administrative actions.  Based on the panel's findings that a number of previously reported positive urinalysis test results were not scientifically or legally supportable, a team of chemists and attorneys have reviewed all available records of positive urinalysis tests reported from 27 April 1982 through 31 October 1983 by each Army drug testing laboratory.

	c.  The Air Force also conducted a review of positive urinalysis tests performed for the Army at its drug testing laboratory during this time period.  The review of your positive urinalysis tests reveals that it did meet all scientific and legal requirements for use in disciplinary or administrative actions.  However, you may disagree with this determination.  If you believe that any action taken against you based upon this positive urinalysis test was improper, or that your military records otherwise improperly reflect this positive urinalysis test, you may petition the ABCMR to seek a correction of any error or injustice that you believe may have occurred.

20.  Army Regulation 635-200, effective 1 October 1982, sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

21.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records reveal the applicant displayed a level of unsatisfactory performance as evidenced by his continuous NJP and positive urinalysis on two occasions.  It appears the applicant's commander judged the applicant as an unsatisfactory Soldier and determined his retention would have had an adverse impact on military discipline, good order and morale.  Accordingly, his chain of command initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable. 

3.  The evidence shows the Air Force also conducted a review of positive urinalysis tests performed for the Army at its drug testing laboratory during this time period.  The review of the applicant's positive urinalysis tests revealed that it did meet all scientific and legal requirements for use in disciplinary or administrative actions.

4.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for upgrading his discharge to 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)                                         AR20140020987





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ABCMR Record of Proceedings (cont)                                         AR20140020987



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