RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 February 2006
      DOCKET NUMBER:  AR20050007169


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Dennis J. Phillips            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Article 15 dated 14 June 1983 be
removed from his records.  In his original application (Docket Number
AC9412971, which was administratively closed by letter dated 20 February
1996) due to his records being unavailable), he additionally requested
"restitution of pay between E3 and E5 for 22 months" and a refund of the
forfeiture taken as a result of the Article 15.

2.  The applicant states he was given an Article 15 for a positive drug
test.  Money was taken from his pay and the Article 15 was filed in his
records.  During his last 2 or 3 months in service, he received a letter
stating a mistake was made by the Army.  He sent in the blue form sent to
him but he never got a response from the Army.  In his original
application, he stated he would have been promoted to E5, and higher, but
due to the unjust test result his promotions were put on hold.

3.  The applicant provides no additional supporting evidence.  With his
original application, he apparently provided his DD Form 214 (Certificate
of Release or Discharge from Active Duty) and his Article 15.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 February 1985.  The original application submitted in this
case was dated 27 September 1993.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 17 February 1982.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 31C (Channel Radio Operator).

4.  On 14 June 1983, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for, between about 27 March
and 6 April 1983, knowingly and wrongfully using some amount of marijuana,
during which time he was not on leave but was present for duty, said
wrongful use having an adverse impact on military fitness and readiness,
and being prejudicial to good order and discipline in the Armed Forces.
His punishment was a reduction to pay grade E-2 (suspended for 120 days), a
forfeiture of $125.00 pay for 1 month,     14 days extra duty, and 14 days
restriction.  The Article 15 was directed to be filed in the restricted
fiche of his Official Military Personnel File.  (The Article 15 is not
filed in the applicant's records.)

5.  The applicant was promoted to Specialist Four, E-4 on 26 June 1984.

6.  On 19 February 1985, the applicant was honorably released from active
duty upon the expiration of his term of service.

7.  In 1983, a Blue Ribbon Panel of experts in toxicology and drug testing
was established to evaluate the scientific and administrative procedures
used by Army laboratories where urine specimens were tested.  The panel’s
report, entitled “Review of Urinalysis Drug Testing Program,” dated 12
December 1983, 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 was
not scientifically or legally supportable for use in disciplinary or
administrative actions.

8.  Subsequently, the Deputy Chief of Staff for Personnel (DCSPER)
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.  In
the applicant’s case, the review team discovered one positive urinalysis,
processed on the specimen submitted by the applicant on 6 April 1983.  The
team specifically examined the test results and determined that the
scientific test procedures were supportable; however, the supporting chain
of custody documents used were deficient.  Consequently, a conclusion that
the applicant’s urine specimen contained illegal drugs would not be legally
supportable.

9.  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.

10.  On 25 January 2006, the Defense Finance and Accounting Service (DFAS)
informed the Board analyst that the applicant's leave and earnings
statements for the period January 1984 through March 1985 were reviewed and
no indication to show the forfeiture of $125.00 was refunded to the
applicant was discovered.

DISCUSSION AND CONCLUSIONS:

1.  The positive urinalysis result upon which the applicant’s 14 June 1983
Article 15 was based was determined to be not legally supportable for use
in disciplinary or administrative actions.  For this reason, it would be
equitable to remove that Article 15 from his records; however, the Article
15 has already been removed from his records for an unknown reason.

2.  In the applicant's original application, he requested "restitution of
pay between E3 and E5 for 22 months" and a refund of the forfeiture taken
as a result of the Article 15.

3.  Records at DFAS verify that the applicant had not been refunded the
$125.00 forfeiture while he was on active duty.  His original (and only
prior) application to the Board had been administratively closed.  It
appears it would be equitable to refund the $125.00 forfeiture to him at
this time.

4.  The applicant's contention he would have been promoted to E5, and
higher, had the initial error not occurred is noted.  Unfortunately, to
presume he would have been promoted to E4 earlier than he was, or to E5 or
higher by time he separated, is purely speculative.  Such speculation is
insufficient to warrant granting this particular relief.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 February 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     18 February 1988.  The applicant did not file
within the 3-year statute of limitations; however, based on the available
evidence it would be in the interest of justice to excuse failure to timely
file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__ym____  _mjf____  _djp____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by refunding to him the
$125.00 forfeiture of pay taken as a result of the 14 June 1983 Article 15.

2.  In accordance with Army Regulation 15-185, following completion of the
administrative corrections directed herein, the previous administrative
action of this Board (Docket Number AC9412971) and this current Record of
Proceedings (Docket Number 20050007169) and all documents related to these
two applications shall be returned to this Board for permanent filing.

3.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
"restitution of pay between E3 and E5 for 22 months."




                            __Yolanda Maldonado___
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007169                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060202                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |126.00                                  |
|2.                      |128.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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