PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 February 1999                  
	DOCKET NUMBER:   AC98-09303
                                          AR1998005598

	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. Loren G. Harrell		Director	
	Ms. Juanita I. Williams 		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Carol Jo Suiter		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.	The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his general discharge, under honorable conditions, be upgraded to fully honorable and that the narrative reason for his discharge be changed.  

3.  The applicant states that he was a victim of circumstances and believes he was innocent of the charges of which he was accused.  He states that in April 1982 while stationed overseas in Germany he was arrested by military police (MP) and two Criminal Investigation Division (CID) agents and charged with possession and sale of hashish.  He claims that no hashish was found on him at the time and no action was taken against him until June 1982 when he was processing for reassignment.  At that time his commander read him an Article 15 for possession and sale of marijuana on 19 March 1982.  After asking to see the evidence against him, he consulted with a lawyer and was given two MP reports relative to the charges.  He then revealed to his lawyer that although he had smoked hashish on occasion, he had never sold any.  He states that his lawyer told him to take the Article 15 because he could lose the court-martial.  

4.  He states that although he experimented with hashish on occasion, he ceased his involvement with drugs in early March 1982 and was never involved with drugs again during the remainder of his service.  Concerning his discharge as a drug rehabilitation failure, he states that to his knowledge he did not take part in, nor was he ever advised to take part in, a rehabilitation program.  In, fact, he did not know one existed.  When his commander presented him with his discharge papers, he informed him that he had tested positive on two urinalysis tests on 
9 and 10 June 1982.      

5.  The applicant’s counsel states that the applicant’s discharge should be changed to honorable and the reason for discharge changed to Secretarial Authority.  Counsel further states, essentially, that the applicant was deemed a drug rehabilitation failure based upon two urinalysis tests, which are not supported by the evidence of his service record and, therefore, cannot be the basis for a chapter 9 discharge.

6.  The applicant's military records show he enlisted in the Regular Army on 22 August 1980 for a period of 3 years and completed basic combat training and training as a motor transport operator.  He served in Germany as a heavy vehicle driver from 5 January 1981 through 26 August 1982.  On 31 August 1982 he received a general, under honorable conditions, discharge under the provisions of Army Regulation 635-200, chapter 9.  The reason for discharge at that time was “alcohol or other drug abuse (Exemption Policy).”  Under the current version of the regulation the reason is shown as “alcohol/drug abuse rehabilitation failure.”   

7.  The applicant and another soldier were titled in a CID investigation report, dated 5 October 1980, a copy of which is filed in the applicant’s military records.  The applicant was cited for wrongful possession, sale and use of marijuana.  The CID investigation revealed that the applicant possessed one marijuana cigarette, containing approximately one gram of marijuana, having a street value of $2.00.  Further investigation disclosed that between 1400 and 1500 hours, 5 October 1980, in the open field adjacent to the Flamingo Club, Fort Dix, New Jersey, the applicant possessed and sold five marijuana cigarettes containing an unknown quantity of marijuana, to the other soldier for $5.00.  The other soldier admitted consuming the marijuana he purchased from the applicant.  The applicant also admitted consuming marijuana with the other soldier.  As a result, the applicant was administered nonjudicial punishment (NJP) under Article 15, UCMJ, on 10 October 1980.   

8.  The applicant was reassigned to Germany on 5 January 1981.  While serving in Germany he was again titled in a CID investigation report for wrongful possession and sale of a controlled substances (hashish), occurring on 19 March 1982.  Investigation revealed that he sold 5.71 grams of hashish for 200 Deutsch Marks, estimated street value of $114.20 in US currency. 

9.  On 25 March 1982 the applicant was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) and was enrolled in Track II of the program on 31 March 1982.  He remained in the program until 1 July 1982, at which time it was determined that he was not making any progress toward rehabilitation due to his continued involvement in incidents of drug abuse. 

10.  On 22 June 1982, while in the ADAPCP, he was administered NJP for the wrongful possession and sale charges mentioned in paragraph 8, above.  The punishment consisted of reduction from pay grade E-3 to pay grade E-1, forfeiture of $275.00 per month for 2 months and 5 days extra duty.  

11.  On 1 July 1982 the clinical director of the ADAPCP declared the applicant to be a rehabilitation failure, stating as the basis for the declaration  the applicant’s lack of desire for rehabilitation and his repeated involvement in incidents of drug abuse.  

12.  On 30 July 1982 the applicant’s commander notified him of his intent to initiate discharge proceedings against him under chapter 9, Army Regulation 635-200.  The commander cited as the basis for his action the fact that the applicant had been declared a drug rehabilitation failure and his involvement in more incidents of drug abuse while enrolled in the program.  The applicant was advised of his rights in the discharge process and indicated his desire for military legal counsel to assist him.   

13.  Subsequently, the appropriate authority approved the recommendation for discharge, and the applicant was discharged, accordingly, on 31 August 1982 with a General Discharge Certificate in pay grade E-1.    

14.  The applicant petitioned the Army Discharge Review Board for an upgrade of his discharge, and his request was denied on 10 July 1984.   

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. 

16.  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.

17.  Subsequently, the 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.

18.  The review team found two positive urinalyses attributable to the applicant during the above-mentioned period.  One had been tested on 10 June 1982 and the other had been tested on 25 June 1982.  The review team specifically examined those test results and determined that either the scientific test procedures or the supporting chain of custody documents used, or both, were deficient in both instances.  Consequently, a conclusion that the applicant's urine specimen contained illegal drugs, based upon those tests, would not be legally and/or scientifically supportable.

CONCLUSIONS:

1.  The applicant’s involvement in the possession, use, and sale of illegal drugs while stationed at Fort Dix, New Jersey, and his possession and sale of illegal drugs in Germany are well documented by the CID investigation reports contained in his records.  There is no reason to believe he was a victim of circumstances.

2.  His claim that he never took part in a rehabilitation program may be accurate. However, the record shows he was enrolled in the ADAPCP from 31 March to 
1 July 1982, at which time he was declared a rehabilitation failure by an alcohol and drug counsel at the ADAPCP due to his lack of desire for rehabilitation and his continued involvement in drugs.  

3.  Neither the alcohol/drug counselor at the ADAPCP nor the applicant’s commander specifically identified what constituted his “continued involvement” in drugs; however, with the information now available to the Board from the Urinalysis Records Review Team, it is reasonable to presume that the two positive urinalyses uncovered by that team formed the basis for that conclusion.  This conclusion is supported by the applicant’s statement that his commander informed him during discharge processing that he had tested positive twice in June 1982.   

4.  Under normal circumstances, the declaration that the applicant was a drug rehabilitation failure and his discharge under chapter 9, Army Regulation 635-200, based upon the two positive drug urinalyses in June 1982, while he was in the ADAPCP, would have been proper and supportable.   

5.  However, since the Urinalysis Records Review Team’s review of those urinalysis tests determined that either the scientific test procedures or the supporting chain of custody documents used, or both, were deficient, a conclusion that the applicant’s urine specimens tested in June 1982 contained illegal drugs would not be legally or scientifically supportable and, therefore, cannot and could not serve as a basis for declaring him a rehabilitation failure.  

6.  In view of the foregoing, the applicant’s records should be corrected as counsel requests – by upgrading his discharge to fully honorable and by changing the reason and authority to Secretarial Authority.  

7.  The Board notes that the applicant was reduced to pay grade E-1 by NJP administered on 22 June 1982 while he was in the ADAPCP.  However, the NJP was administered for wrongful possession and sale of hashish, which occurred on 19 March 1982, as evidenced by a CID investigative report.  Consequently, that NJP was not based upon a urinalysis and was properly imposed, as was the punishment of reduction to pay grade E-1.   

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was honorably discharged from the Regular Army on 31 August 1982 by reason of Secretarial Authority; and that his separation and reentry codes be changed, accordingly.   

2.  That the Department issue to the individual concerned new separation documents, to include an Honorable Discharge Certificate and a DD Form 214, in lieu of the separation documents previously issued to him on 31 August 1982. 

3.  That so much of the application as is in excess of the foregoing be denied. 

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

___xxx__  ___xxx__  __xxx___  DENY APPLICATION

		____Irene N. Wheelwright___
		        CHAIRPERSON

INDEX

CASE ID1998005598	AC98-09303	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990211	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19820831	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	Alcohol or other drug abuse (Exemption Policy)r	
BOARD DECISION	PARTIAL GRANT 	
REVIEW AUTHORITY	DASA	
ISSUES         1.		
2. A69.00		
3.A69.01		
4.		
5.		
6.