MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 December 1998                   
	DOCKET NUMBER:   AC98-09054

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

	Mr. Loren G. Harrell		Director	
	Mr. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Stanley Kelley		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That his general discharge under honorable conditions be upgraded to honorable.

APPLICANT STATES:  That his general discharge is improper because it was based on a urinalysis test which was later determined to be erroneous.

In support of his request the applicant submits a copy of an undated letter from the Office of the Deputy Chief of Staff for Personnel (DCSPER) , SUBJECT:  Correction of Military Records, Positive Urinalysis Tests During the Period April 27, 1982 through October 31, 1983.  In this letter he was informed that the review of his positive urinalysis test revealed that it did not meet all scientific or legal requirements for use in disciplinary or administrative actions.  Further, if he believed that any action taken against him had been based upon this positive test, he could petition this Board to seek a correction of any error or injustice that he believed may have occurred.  

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Army on 17 March 1981 for 3 years.  He successfully completed his initial training and was assigned to Fort Hood, Texas, for duty as a combat engineer (12B).

The applicant was counseled on at least three occasions between 10 December 1981 and 14 September 1982 for poor personal appearance and attitude, for failure to pay just debts and for missing formation.

On 24 May 1983 the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty, for willfully disobeying lawful orders from two different commissioned officers and from two different noncommissioned officers.  The punishment included a reduction from private first class (E-3) to private (E-1) (suspended) and confinement for 30 days.  On 
8 June 1983 the 30 days of confinement was mitigated to extra duty and restriction for 17 days.

On 27 June 1983 the applicant was notified by his company commander that he was being recommended for separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The commander cited as a basis for his recommendation the applicant’s poor appearance and attitude, his disorderly conduct, indebtedness and lateness to formations.

After consulting with counsel, the applicant elected to submit a statement in his own behalf requesting that his record of training, assignments and awards be considered in deciding whether he would receive an honorable or a general discharge.

On 13 July 1983 the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.  Accordingly, on 21 July 1983 the applicant was discharged under  honorable conditions.  He completed 2 years, 7 months, and 15 days of creditable active duty.

There is no evidence in the applicant’s official military personnel file of his testing positive for illegal drugs.  

On 20 August 1997 the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  On 26 January 1998 the ADRB acknowledged receipt of his request and advised the applicant that his application would be considered several months in the future.  On 2 February 1998 the ADRB informed the applicant’s counsel that his case would be reviewed on 4 March 1998.  On 10 March 1998 the applicant was informed that his counsel had not responded to the ADRB and therefore his case would be scheduled for review within 60 days.  On 17 November 1998 his application was forwarded to this Board for consideration.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 13 of that regulation provides the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgement, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

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.

Subsequently, the 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.
The review team discovered two positive urinalyses for marijuana attributable to the applicant.  The first was processed on a specimen submitted by the applicant on 5 February 1983.  The second was processed on a specimen submitted by the applicant on 12 May 1983.  The team specifically examined each of the test results and determined, in the first instance, that both the scientific test procedures and the supporting chain of custody documents used were proper and met the criteria established by the Blue Ribbon Panel. The review team therefore concluded that that particular urine specimen contained evidence of illegal drugs and was legally and scientifically supportable.  However, the team found, with regard to the second specimen, that either the scientific test procedures or the supporting chain of custody documents used, or both, were deficient.  Consequently, a conclusion, in that instance, that the applicant's urine specimen contained illegal drugs would not be legally and/or scientifically supportable.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  The applicant was discharged for unsatisfactory performance, as evidenced by the counseling statements he received and the NJP.  His commander cited as the basis for his separation his poor appearance and attitude, his disorderly conduct, indebtedness and lateness to formations.    

4.  Even though the applicant tested positive on two occasions for use of marijuana and even though one of those tests was declared unsupportable by the Urinalysis Records Review Team, nothing in the record suggests that the commander used the urinalysis results as a basis or partial basis for the applicant’s  discharge.

5.   The applicant received the letter from the DCSPERS because one of his urinalyses was declared unsupportable.  However, he has not shown and it does not appear that any disciplinary or administrative action was taken against him based upon the positive results. 

6.  In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___JHL___  __JMA___  __SK____  DENY APPLICATION

						Loren G. Harrell
						Director