PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           04 March 1999                   
	DOCKET NUMBER:   AR1999014793

	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:

	Mr. Curtis W. Barbee		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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, under honorable conditions, discharge be upgraded to honorable and that a nonjudicial punishment (NJP) he received on 1 June 1983, based upon a positive drug urinalysis be set aside.  

3.  The applicant states that he did not use marijuana and was wrongly labeled a drug abuser.  The Army has now notified him that his urinalysis test was inaccurately performed and that the NJP he received in March (sic) 1983 was unjust.  He states that he deserves an honorable discharge, as well as the money that was wrongfully taken from him, to include the hundreds of dollars of his enlistment bonus that he had to repay.  

4.  The applicant’s military records show that he enlisted in the Regular Army on 16 September 1980 for a period of 4 years for the U. S. Army Training of Choice Enlistment Option and the U.S. Army Cash Bonus Enlistment Option.  He served in Germany for 25 months and attained the rank of private first class (E-3).  He completed 3 years, 1 month, and 23 days of his 4-year enlistment before being discharged with a general discharge, under honorable conditions, on 
5 December 1983 as a drug abuse rehabilitation failure.  He was discharged in pay grade E-1 with a date of rank (DOR) of 10 June 1983.  

5.  While on active duty the applicant received NJP under Article 15, UCMJ, on three occasions.  

6.  On 18 October 1982, while serving in Germany, he received NJP for wrongfully having in his possession one ounce, more or less, of marijuana.  The punishment consisted of a forfeiture of pay of $162.00 (suspended) and 14 days extra duty.  

7.  Upon PCS (permanent change of station) to Fort Lewis, Washington, the applicant was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for evaluation due to a command referral from his unit in Germany.  Initial screening/evaluation revealed the primary substance abuse was cannabis (marijuana) and that there was also alcohol abuse.  He was enrolled in the ADAPCP on 3 December 1982.  

8.  On 1 June 1983 the applicant received NJP for knowingly and wrongfully using marijuana between 28 February and 9 March 1983, detected by urinalysis. The punishment consisted of reduction from pay grade E-3 to pay grade E-2, extra duty for 30 days, and forfeiture of $150.00 pay per month for 2 months, suspended until 1 December 1983.  

9.  On 10 June 1983 the applicant was again administered NJP, that time for being absent from his unit from 27 April to 24 May 1983.  The punishment consisted of reduction from pay grade E-3 to pay grade E-1 and 45 days extra duty.  

10.  On 13 October 1983 a rehabilitation team at the ADAPCP met and declared the applicant a rehabilitation failure, indicating that he had shown no progress since his treatment began, had failed to comply with treatment plans and goals, and that there was strong evidence that he continued to abuse marijuana.  

11.  Thereafter, the applicant’s commander recommended him for discharge as a drug abuse rehabilitation failure.  The applicant acknowledged the letter notifying him of this action, declined counsel, did not submit a statement in his behalf, and indicated that he did not desire treatment in a VA medical center.  The appropriate authority approved the recommendation for discharge and directed issuance of a General Discharge Certificate.  

12.  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. 

13.  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.

14.  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.

15.  The review team found four positive urinalyses attributable to the applicant.  The urine specimens were given by the applicant on, 9 March 22 July, 15 July, and 8 September 1983, respectively.  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 only one instance, that being the test performed on the 9 March 1983 specimen.  Consequently, a conclusion that the urine specimen given by the applicant on
9 March 1983 contained illegal drugs would not be legally and/or scientifically supportable for disciplinary or adverse administrative action.  The remaining two urinalyses met the scientific and legal requirements.

CONCLUSIONS:

1.  The applicant was properly declared a drug abuse rehabilitation failure, in that while he was enrolled in the ADAPCP urine specimens he submitted on 15 July,  22 July, and 8 September 1983 tested positive for marijuana use.  Those tests were subsequently reviewed by the Urinalysis Records Review Team and determined to be scientifically and legally supportable for use in disciplinary and adverse administrative action.  

2.  Consequently, the applicant’s administrative discharge as a drug abuse rehabilitation failure was accomplished in compliance with the applicable regulation.  Also, the character of his discharge (under honorable conditions) was appropriate, considering his record of drug use and NJP.  

3.  The NJP’s the applicant received on 18 October 1982 for possession of marijuana and on 10 June 1983 for being absent from his unit were imposed in compliance with applicable laws, regulations, and policies.  The punishment imposed was neither unjust nor disproportionate to the offenses committed. 

4.  However, the NJP imposed against the applicant on 1 June 1983 was based solely upon the urine specimen given by him on 9 March 1983, and since the Urinalysis Records Review Team determined that that urinalysis was unsupportable, the subject NJP is unjust and should be set aside.  All rights, privileges and property lost as a result of this NJP should be restored.   

5.  The Board notes that the punishment of that NJP consisted of reduction from pay grade E-3 to E-2, extra duty for 30 days, and forfeiture of $150.00 pay per month for 2 months, and that the forfeiture was suspended until 1 December 1983.  The Board also notes that the applicant received NJP again 9 days later (on 10 June) which reduced him from pay grade E-3 to pay grade E-1.  (It appears that the reduction imposed on 1 June 1983 had not yet taken place).  Consequently, the applicant was properly discharged in pay grade E-1 with a DOR of 10 June 1983.  

6.  It is not clear from his military personnel records if the suspended forfeiture imposed on 1 June 1983 ever took effect.  This information may be available in finance records maintained by the Defense Finance and Accounting Service (DFAS).  If, in fact the forfeiture was imposed, then it should be returned to him.  

7.  The applicant is not entitled to reimbursement of any enlistment bonus money that may have been collected from him, since he did not complete his 4-year term of enlistment for which he received the bonus.  

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 setting aside the NJP under Article 15, UCMJ, imposed against the individual concerned on 1 June 1983 and by restoring to him all rights, privileges and property (as determined by the DFAS) lost as a result of such NJP.  

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

BOARD VOTE:  

___X_____  ____X____  ____X____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID AR1999014793	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990304	
TYPE OF DISCHARGE	(GD,)	
DATE OF DISCHARGE	19831205 	
DISCHARGE AUTHORITY	AR635-200, chapter 9 . . . . .  	
DISCHARGE REASON	144.6902	
BOARD DECISION	PARTIAL GRANT 	
REVIEW AUTHORITY	PARTIAL GRANT	
ISSUES         1.144,6902		
2.		
3.		
4.		
5.		
6.