PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  1 February 2001
	DOCKET NUMBER:  AR2000037118

	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	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. James E. Anderholm		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, in effect, that he receive monetary compensation for loss of his military career due to an erroneous general discharge for drug and alcohol rehabilitation failure based on faulty urinalysis tests; that he receive constructive Army Reserve satisfactory service credit; that his discharge show that he received a General Equivalency Diploma (GED); that he receive waivers for reenlistment; and that he be advanced to the pay grade of E-3 or E-4.

3.  The applicant states, in effect, that the Army took 9 years after his erroneous discharge to correct the discharge, give him full service credit, and properly pay him at this discharge pay grade of E-2.  For this and the loss of his military career, he should receive monetary compensation.  He states that the records of his erroneous general discharge for drug and alcohol rehabilitation failure were to be removed from his military records in 1986 but this erroneous discharge was used against him by the Hawaii Attorney General and Child Protective Services in a 1995 State of Hawaii Family Court case by stating that he had been discharged from the military for drug abuse.  They did not say anything about his replacement correct honorable discharge.  

4.  He states, in effect, that in 1986, the Army Board of Correction of Military Records (ABCMR) gave him “full active duty credit through his scheduled Expiration of Term of Service (ETS)” and an honorable discharge as though he had not been discharged earlier under erroneous circumstances.  He was discharged at the pay grade of E-2, but he should have been discharged at ETS as at least a pay grade of E-3, promotable to pay grade E-4, as though he had served his full 4 year term of service.

5.  The applicant provides copies of: a Department of the Army, Office of the Deputy Chief of Staff for Personnel, letter (undated and unaddressed) on the subject of “Correction of Military Records, Positive Urinalysis Tests During the Period April 27, 1982, through October 31, 1983”; a page from a Hawaii Family Court proceedings; a general discharge certificate dated 12 December 1983; an ABCMR letter, dated 7 October 1986, informing the applicant of the favorable decision in his case to grant him an honorable discharge, remove all record of the faulty urinalysis positive tests and the related erroneous discharge, and forthcoming pay adjustments; and the 13 August 1986 ABCMR proceedings on his case.

6.  The applicant’s military records show that he enlisted in the Delayed Entry Program on 14 December 1981 to enlist in the Regular Army on 28 July 1982 for a 4 year term of service.  According to his enlistment contract, DD Form 4/2, paragraph 12, he incurred a 6 year military obligation.  What ever part of the 

6 years that he did not serve on active duty, were to be served in the Army Reserve.  He completed basic training and Advanced Individual Training (AIT) at Fort Leonard Wood.  In AIT, he qualified to be a power generator and wheeled vehicle mechanic, Military Occupational Specialty (MOS) 63B.  On 14 January 1983, the applicant was assigned in Germany to Headquarters and Headquarters Company, 10th Engineer Battalion, as a vehicle mechanic.  On 28 January 1983, he was advanced to the rank and pay grade of Private E-2 (PV2) after 6 months of service.

7.  On 30 March 1983, the applicant was identified by a urinalysis test as positive for illegal drug use.  On 22 April 1983, the applicant was referred for treatment in the local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He was informed that he must abstain from further use of illegal drugs and cooperate in ADAPCP counseling and education programs.

8.  On 11 August 1983, the applicant was given a battalion level Letter of Reprimand (LOR) for being involved in wrongful possession and distribution of hashish determined by a Criminal Investigation Division (CID) investigation.  However, there was insufficient evidence to take any action under the Uniform Code of Military Justice.

9.  On 14 September 1983, the applicant submitted a urine specimen which tested positive for illegal drugs.  As a result, he was declared a rehabilitation failure and accordingly discharged on 12 December 1983.  He was discharged under authority of Army Regulation (AR) 635-200, chapter 9 (Drug Abuse Rehabilitation Failure), with a general discharge.  He was credited with 1 year, 
4 months, and 15 days service. The applicant was discharged from the Army and was not transferred to the Army Reserve.

10.  Following the applicant’s discharge, the U. S. Army Deputy Chief of Staff for Personnel (DCSPER) conducted a review of available records of all positive urinalysis test results reported from 27 April 1982 through 31 October 1983.  
It was found that the positive test results during that period could not be supported legally or scientifically as evidence of illegal drug use.  Consequently, it was further determined that these tests could not rightfully serve as the basis for adverse administrative or disciplinary actions.

11.  On 13 August 1986, the ABCMR determined that, based on the findings of the DCSPER, the applicant’s general discharge for drug abuse rehabilitation failure was incorrect and unjust.  They determined to grant him full credit for his 
4 year term-of-service enlistment contract he would have otherwise completed 

had it not been for the urinalysis test errors.  The Board directed that the applicant’s general discharge be voided and that he be issued an honorable discharge by reason of ETS, effective 27 July 1986, the end date of his 4 year term-of-service. The Board also directed that all benefits and property he lost as a result of general discharge be returned to him.  He was discharged at the pay grade of E-2, the pay grade he had been when he was erroneously discharged.  The Board also directed that all records relating to the general discharge and the defective urinalysis tests be removed from the applicant’s military records.  This was done as none of these documents are in his current records to include the ABCMR proceedings on this issue.

12.  On 31 January 1990, the applicant applied to the ABCMR for correction of his restored pay benefit for the 4 year term of service.  Following the corrections directed by the 13 August 1986 ABCMR Board, the applicant had been paid by finance at only a pay grade E-1 rate instead of the pay grade E-2 rate shown on his new honorable discharge, DD Form 214.  On 2 October 1991, the ABCMR reviewed that applicant’s request and directed that pay records be corrected to show pay grade E-2 and that the applicant be paid accordingly.

13.  According to AR 600-200 (Enlisted Personnel Management System) in effect at the time, the requirements for advancement to pay grade E-3 were 4 months time in grade as an E-2 and 12 months time in service.  The requirements for advancement to pay grade E-4 were 6 months time in grade as an E-3 and 
24 months time in service.  Advancement required command approval which was granted based on the soldiers satisfactory performance.

14.  Under AR 15-185 (Army Board for Correction of Military Records) and section 1552, Title 10, United States Code, which govern the ABCMR, the Board is not authorized to consider or grant monetary compensation for loss of career or damages.  A soldier can make a claim against the government for compensation by writing to the Defense Finance and Accounting Claims/Special Actions Branch, DFAS-DE/FYCC, 6760 E. Irvington Place, Denver, CO 80279-7100.

CONCLUSIONS:

1.  The objective and purpose of the 13 August 1986 ABCMR Board was to return the applicant to his military service status prior the defective urinalysis tests and resulting erroneous discharge, and grant him a full 4 year term of service as though the defective urinalysis test and erroneous discharge never happened.  To this end, the applicant was given full credit for 4 years service and 

an honorable discharge by reason of ETS which could reasonably be assumed if the applicant’s service had not been erroneously interrupted.  However, the issue of the applicant’s rank at the discharge after 4 years service was not considered. 

2.  Had the applicant served the 4 years, according to AR 600-200 requirements for advancement to pay grade E- 3 and E-4, he should have been advanced to E-3 on or about 11 December 1983, 4 months after his 11 August 1983 LOR.  He could not have been advanced prior to that because he would have been flagged while under CID investigation from 27 March 1983 that led to the LOR.  Giving the applicant the benefit of a doubt, assuming continued satisfactory performance, he would have been advanced to pay grade E-4 after an additional 6 months time-in-grade and 24 months time-in-service, on 27 July 1984.

3.  Since the objective of the ABCMR was to restore to the applicant to all rights, privileges, and property, which include granting the applicant a full 4 year term of service, as though the urinalysis tests and general discharge did not happen, then it would be appropriate to also adjust his pay grade and rank to E-4, SP4, as an extension of that decision, as though his 4 year term of service had not been broken.

4.  Soldiers that ETS from the service with a remaining service obligation are released from active duty at the end of their term of service and transferred to the Army Reserve, Individual Ready Reserve (IRR), for the remainder of their service obligation.  The applicant had a 6 years service obligation but was discharged at his ETS instead of being transferred to the IRR.  The records should be corrected to show that the applicant was transferred to the IRR after ETS and then discharged from the Army Reserve at the end of his 6 year obligation, 27 July 1988.  It cannot, however, be assumed that the applicant would have transferred from the IRR to an Army Reserve unit.  This action would have required volitional acts by the applicant which cannot be assumed.  Therefore, the applicant’s IRR time cannot result in any credit toward retirement points or any pay or benefits.

5.  Under AR 15-185 (Army Board for Correction of Military Records) and section 1552, Title 10, United States Code, which govern the ABCMR, it is not within the jurisdiction of the ABCMR to grant the applicant any monetary compensation.  The applicant may make a claim against the government for compensation by writing to the Defense Finance and Accounting Claims/Special Actions Branch.

6.  There is no evidence that the applicant completed a GED while in the military so completion of a GED cannot be entered on the applicant’s DD Form 214.

7.  The ABCMR cannot grant waivers for enlistment/reenlistment.  Such waivers are granted through the recruiting command based on the applicant’s qualifications and the requirements of the Army.

8.  The ABCMR directed that all documents and reference to the applicant’s defective urinalysis drug tests and erroneous general discharge for drug rehabilitation failure be removed from the applicant’s record.  A review of the applicant’s military record verifies that this was done.  However, the ABCMR has no authority over other government or law enforcement agencies that could have such information in their files.  It cannot be assumed that the Hawaii Attorney General or Child Protective Services obtained information from the applicant’s Army files on his former general discharge and drug rehabilitation failure.

9.  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 for the individual concerned by:

	a.  showing that he was advanced to PFC, pay grade E-3, on 
11 December 1983, with any pay or benefits now due; 

b.  showing that he was advanced to SP4, pay grade E-4, on
27 July 1984, with any pay or benefits now due;

c.  showing that he was honorably released from active duty by reason of ETS on 27 July 1986 as a SP4, pay grade E-4;

	d.  showing that upon release from active duty, on 27 July 1986, that he was transferred to the Army Reserve, IRR, to complete his service obligation; 

	e.  showing that he was honorable discharged from the Army Reserve at the end of his service obligation on 27 July 1988; and

	f.  not filing these Board proceedings in the applicant’s military files but return them to this board, after correction actions have been completed, for placement in this Board’s files.

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

BOARD VOTE:  

__ls___  ___bl___  __ja____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Luther L. Santiful______
		        CHAIRPERSON

INDEX

CASE ID	AR2000037118	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PART	
REVIEW AUTHORITY		
ISSUES         1.  129.01	Service Credit	
2.		
3.		
4.		
5.		
6.