MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            11 August 1999
	DOCKET NUMBER:   AR1999020597

	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	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. John P. Infante		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 Separation Authority, his Separation Code, his Reentry Code and his Narrative Reason for Separation be changed on his Certificate of Release or Discharge (DD Form 214).

APPLICANT STATES:  In effect, that the Army Reserve Personnel Center (ARPERCEN) notified him that his records were going to be corrected.  However ARPERCEN failed to correct his DD Form 214.

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

On 29 October 1981, he enlisted in the Army for 3 years in the pay grade of E-1 and he successfully completed his training as an attack helicopter repairer.

On 25 February 1983, the applicant participated in the Army’s drug testing program and the specimen he submitted was tested by urinalysis and was found to contain evidence of marijuana use.

On 29 March 1983, the applicant was referred for treatment in the local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) because of his alcohol abuse.  As such, he was informed that he must abstain from the use of illegal drugs, that he must not abuse alcohol, and that he must cooperate in counseling and education programs.

On 17 May and 17 June 1983, the applicant submitted urine specimens as part of the ADAPCP monitoring program.  Those specimens, when tested by urinalyses indicated the presence of marijuana in his system.

The applicant was declared a rehabilitation failure on 13 July 1983, based on the 17 May and 17 June 1983 positive urinalyses mentioned above, and on his stated refusal to stop using marijuana.

The applicant was notified that action to eliminate him from the Army under the provisions of Army Regulation 635-200, chapter 9 had been initiated.  The commander cited drug abuse rehabilitation failure as the reason that the elimination action was initiated.  The commander also stated that the applicant was entitled to exemption under the policy expressed in section II, chapter 6, table 6-1, of Army Regulation 600-85, because much of the substance abuse information and evidence used in justifying the separation was obtained from the service member under the circumstances listed in the cited regulatory policy.  The applicant acknowledged receipt of the notification and he opted not to submit a statement in his own behalf.

On 29 July 1983, the discharge authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.  Accordingly on 5 August 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9 for being a drug abuse rehabilitation failure.  He had 1 year, 9 months and 7 days of total active service and he was issued a General Discharge Certificate, a Separation Code of JPC and a Reentry Code of RE-3.

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 uranalysis 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 Deputy Chief of Staff for Personnel established a team of military chemists and lawyers called the “Urinalysis Records Review Team.”  The team reviewed available records of all positive urinalysis results reported between 27 April 1982 and 31 October 1983.  The team specifically examined the applicant’s test results and determined that either the scientific test procedures or the supporting chain of custody documents used, or both, were deficient.  Consequently, a conclusion that the applicant’s urine specimens contained illegal drugs would not be legally and/or scientifically supportable.

On 4 May 1994, this Board upgraded the applicant’s discharge to honorable and directed that any and all references to the urinalyses on the dates indicated be deleted from his records and any administrative actions taken solely because of those urinalyses be deleted.

Army Regulation 600-85 prescribes policies and procedures for the operation and evaluation of the Army’s ADAPCP.  It discusses, among other subjects, the rehabilitation program, and limits the use of certain evidence obtained from individuals under the exemption policy.  For individuals enrolled in the ADAPCP, the exemption policy provides immunity from disciplinary action and covers admissions of drug use/possession for personal use, or alcohol abuse occurring prior to the time of initial ADAPCP interview, which is revealed to a physician or an ADAPCP interview, which is revealed to a physician or an ADAPCP counselor or is revealed by a positive urinalysis administered during any phase of the rehabilitation program.  Table 6-1 of Army Regulation 600-85 states, pertinently, that a member is entitled to an honorable discharge when the results of compelled urinalyses administered for the purpose of identifying drug abusers, wither for the purpose of entry into a treatment program or to monitor progress through rehabilitation follow-up, are used in the administrative discharge process.

The limited use exemption policy proscribed in Army Regulation 600-85 does not extend to statements made by individuals concerning their use of illegal drugs subsequent to ADAPCP enrollment or to statements indicating an unwillingness to participate in a rehabilitation program.  Accordingly, those statements may provide a basis for declaring an individual a rehabilitation failure.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.

The separation code JPC applies to persons who failed through inability or refusal failure to participate in, cooperate in, or successfully complete a program for drug rehabilitation.

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:

2.  The actions by the Army in this case were correct and there is no doubt to be resolved in favor of the applicant.

3.  The applicant was properly referred to the ADAPCP for treatment and rehabilitation based on his alcohol abuse.  He was declared a rehabilitation failure on the basis of the unsupportable urinalyses and his stated refusal to stop using marijuana and he was appropriately discharged under the provisions of Army Regulation 635-200, chapter 9.

4.  Although the unsupportable urinalyses were protected by the limited use policy, his stated refusal to stop using marijuana was not protected by the policy and was sufficient, in and of itself, to declare him a drug rehabilitation failure.  Accordingly, that declaration, and the discharge which was based upon it were proper.  There is no good reason for reversing either of those actions.

5.  The applicant was separated and assigned an RE code in accordance with regulations then in effect and his separation code appropriately reflects his narrative reason for separation as drug abuse rehabilitation failure.

6.  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 has failed to submit evidence that would satisfy the aforementioned requirement.

7.  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

__jhk ___  ___wtm__  __jpi____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020597	
SUFFIX		
RECON		
DATE BOARDED	1999/08/11	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000/discharge/separation docs	
2.  4	100.0300/RE code	
3.  191	110.0200/reason & authority	
4.		
5.		
6.