IN THE CASE OF:	  

		BOARD DATE:	  18 August 2015

		DOCKET NUMBER:  AR20140021414 


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 general discharge (GD), restoration of his rank to private first class (PFC)/E-3 with advancement to specialist four/
E-4, and entitlement to back pay and allowances for accrued leave.

2.  The applicant states that his early discharge under less than fully honorable conditions, demotion, loss of pay, and inability to complete his full period of active duty service resulted from an erroneous positive drug test.  He pleaded his innocence to no avail and his service was deemed undesirable.  He received the notice that his urinalysis test was invalid, but it was lost in storage.

3.  The applicant provides a Department of Army letter, undated, subject:  Correction of Military Records, Positive Urinalysis Tests during the Period April 27, 1982 through October 31, 1983.

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 enlisted in the Regular Army on 25 November 1981 for a period of 4 years.  He was advanced to PFC on 25 November 1982.

3.  A DA Form 5180-R (Urinalysis Custody and Report Record) shows he underwent a random drug test and his urine sample was received at the Fort Meade, MD, drug testing laboratory on 24 October 1983.  On 13 January 1984, the report was finalized with a positive finding for the active component in marijuana (tetrahydrocannabinol (THC)).

4.  On 31 October 1983, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for possession and wrongful use of marijuana.  His punishment included reduction from grade E-3 to E-2 and forfeiture of $75.00 pay per month for 2 months.  He did not appeal the NJP or offer a statement in his own behalf.

5.  On 27 February 1984 following the receipt of the positive urinalysis report, the applicant's unit commander initiated separation against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, and the Department of the Army message, dated 9 May 1983, that mandated separation for illegal drug abusers.  The unit commander noted the 14 October 1983 urinalysis was reported as positive for THC.  He also stated the 31 October 1983 NJP was for an incident that occurred on 14 October 1983, the same day as, but after, the applicant had given the sample that later tested positive.

6.  The applicant acknowledged the separation action and submitted a statement in his own behalf wherein he stated he had attended the Drug and Alcohol Program for only one session with a drug counselor determining that he had been rehabilitated.  He stated he had the "grave misfortune of mixing bad timing with a foolish experiment....I understand the regulations and have accepted my punishment responsibly.  I have learned my lesson concerning drugs and have been completely free of drugs for nearly half a year."

7.  On 26 April 1984, the discharge authority approved the applicant's discharge for misconduct under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate.

8.  The applicant was discharged under honorable conditions (general) on 1 May 1984.  He completed 2 years, 5 months, and 7 days of creditable service.  His DD Form 214 lists his awards as the Army Service Ribbon, Expert Marksmanship Qualification Badge with Hand Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

9.  In 1983, the Einsel Commission Report, a "Blue Ribbon" panel of experts in toxicology and drug testing, was established by the Office of the Under Secretary of Defense to evaluate the scientific and administrative procedures used by Army laboratories where urine specimens were tested.

10.  The panel's report, entitled "Review of Urinalysis Drug Testing Program," dated 12 December 1983, concluded the testing procedures used by all of the military 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.  The review panel noted the Fort Meade laboratory had suspended drug testing on 1 October 1983 and did not resume testing until after 9 December 1983.

11.  Subsequently, the Department of the Army 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.

12.  The flawed urinalysis notification letter provided by the applicant is undated, unaddressed, and unsigned with no signature block.  It states, in part:

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 October 24, 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.

The panel rendered its report on December 12, 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 April 27, 1982 through October 31, 1983 by each Army drug testing laboratory.

The review of your positive urinalysis test reveals that it did not meet all scientific or legal requirements for use in disciplinary or administrative actions.  If you believe that any action taken against you was based upon this positive urinalysis test, you may petition the Army Board for Correction of Military Records (ABCMR) to seek a correction of any error or injustice that you believe may have occurred.

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

	a.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.

	b.  A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

14.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated promotion to pay grade E-4 required 24 months of time in service waivable to 15 months and 6 months of time in grade as an E-3 waivable down to 3 months.  A Soldier must be serving in pay grade E-4 with the appropriate security clearance based on the requirements of the military occupational specialty.  Higher authority commanders may withhold promotion authority and pool their lower level commands' assigned strength as a management tool.  Promotion was not automatic and required a unit commander’s recommendation.  All commands must ensure that promotions to grade E-4 did not exceed the limitations announced by Headquarters, Department of the Army.

15.  Army Regulation 27-10 (Military Justice) provides implementation instructions for Article 15, Uniform Code of Military Justice.  A commander may use NJP in cases involving minor offenses.  NJP may be imposed to correct, educate, and reform offenders.  Administrative reduction in grade is a nonpunitive measure to reinforce Army standards.

DISCUSSION AND CONCLUSIONS:

1.  Concerning his restoration of rank and entitlement to back pay and allowances, the applicant accepted NJP for wrongful possession and use of marijuana on 14 October 1983.  His NJP resulted in his reduction in grade and loss of pay.  This NJP was not based upon a questionable urinalysis.  By accepting the NJP and not demanding trial by court-martial, the applicant is presumed to have committed the offense as cited in the NJP.  By regulation, the imposing commander had the authority to reduce the applicant in grade and direct forfeiture of pay.  Once reduced, the applicant had to again meet the minimum time-in-grade requirement for advancement to E-3.  Thus the applicant’s argument that he was scheduled for advancement to pay grade E-4 is not supported due to lack of advancement to grade E-3 after imposition of the NJP.

2.  The copy of the urinalysis notification letter provided by the applicant contains neither the date it was issued nor, more importantly, any indication as to whom it was issued.

3.  The chain of custody document (DA Form 5180-R) shows the applicant's urine sample was received by the Fort Meade laboratory on 24 October 1983.

4.  During the period his urinalysis was being processed, Army drug laboratory procedures were under review.  This review found that some positive test results were deemed to not meet all scientific or legal requirements for use in disciplinary or administrative actions.  The Army drug laboratory testing procedures were under review from 24 October 1983 through 12 December 1983, the date the report was released.  The panel found that 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 found that a percentage of previously reported positive urinalysis results during the period 27 April 1982 through 31 October 1983 were not scientifically or legally supportable for use in disciplinary or administrative actions due to physical security or poor administrative handling and reporting concerns.

5.  The final report of the applicant's urinalysis was issued on 13 January 1984, a month after the ending date of the laboratory review and more than 2 months after the dates cited in the notification letter he provided.

6.  While there is no evidence to show exactly what date the applicant's urinalysis was conducted, the Fort Meade laboratory was in a shut-down mode from 1 October 1983 through 9 December 1983; therefore, the applicant's urinalysis could not have been processed during the inclusive dates cited in the notification letter provided by the applicant.

7.  Further, even if the applicant's urinalysis test results were administratively flawed, the applicant admitted that he used illegal drugs in his personal statement submitted in conjunction with his separation action.

8.  Although discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Army Regulation 635-200, chapter 14, the separation authority discharged the applicant under honorable conditions (general).  The available records support this decision and there is no evidence of error, inequity, or injustice in the characterization of his service.  As he was properly discharged prior to his expiration term of service (ETS), there is no justification to support any payment for back pay and allowances between his date of discharge and projected ETS date.

9.  The applicant's self-admitted illegal drug use does not meet the standards of acceptable conduct and performance of duty warranting a fully honorable discharge.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.


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 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)                                         AR20140021414



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ABCMR Record of Proceedings (cont)                                         AR20140021414



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