MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 June 2000                   
	DOCKET NUMBER:   AR2000039229

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Stueve		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 he be reinstated on active duty, that he be paid all back pay and allowances and all rights and privileges be restored.  In the alternative, he requests that his discharge be upgraded to honorable.  

APPLICANT STATES:  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.  The erroneous positive results caused his discharge under other than honorable circumstances.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

He enlisted in the Regular Army on 25 January 1980 for 4 years.  On his           DD Form 1966/5, Application for Enlistment, he checked that he had never been involved in the use purchase, possession or sale of marijuana or any other harmful or habit-forming drugs.  

On 9 June 1982, the applicant accepted nonjudicial punishment under Article   15, Uniform Code of Military Justice for wrongfully possessing some amount of marijuana.  His punishment was a reduction to pay grade E-3, a forfeiture of $338.00 for 2 months and 30 days in the correctional facility (suspended).

On 22 April 1983, the applicant was enrolled in the Alcohol an Drug Abuse Prevention and Control Program (ADAPCP).  As such, he was informed that he must abstain from further use of illegal drugs, that he must not abuse alcohol and that he must cooperate in counseling and education programs.  On DA Form 4465, ADAPCP Client Intake Record, he checked that he had used both alcohol and a cannabis produce within 48 hours of enrollment, that he used both substances 2 – 6 times a week, and that he used both substances prior to his entry in the service.

The court-martial charges and the discharge proceedings packet are not available.

On 13 June 1983, the applicant was discharged, in pay grade E-1, with a discharge under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of court martial. He had completed 3 years, 4 months and 19 days of creditable active service with no lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

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 Deputy Chief of Staff for Personnel (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.  In the applicant’s case the review team discovered two positive urinalyses.  The first was processed on the specimen submitted by the applicant on 15 February 1983.  The second was processed in May 1983.  The team specifically examined each of the test results and determined that I each case either the scientific test procedures or the supporting chain of custody documents use, or both, were deficient.  Consequently, a conclusion, in either instance, that the applicant’s urine specimen contained illegal drugs would not be legally and/or scientifically supportable.

Beginning in July 1984, a program was instituted whereby DCSPER notified all persons whose test results had been reviewed by the review team that they had the right to apply to this Board to request correction of any error or injustice which may have resulted.  Two notification letters were prepared.  One informed the recipient that his urinalysis had met the standards set by the Blue Ribbon Panel and was therefore supportable.  The second advised the recipient that his urinalysis (or at least one, if he had more than one) had failed to meet the established standards and was therefor unsupportable.  Due to human error incorrect letters were sent to some individuals.  The error was detected and copies of the proper letters were sent on approximately 31 January 1985.

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. 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 this requirement.

2.  The applicant was discharged under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of court-martial.  The applicant had to have requested this discharge and his request must have included the individual’s admission of guilt.  Without the discharge packet available the Board cannot determine if his discharge was or was not related to his urinalysis tests.

3.  The applicant should have received the DCSPER letter around July 1984.  If he had applied to the Board in a timely manner, it is possible his discharge packet could have been obtained.  Unless the applicant can provide evidence to support his contention, preferably his discharge packet, the board will not presume that his discharge was related to either of his two unsupportable positive urinalysis tests.

4.  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

__mkp___  __esc___  __jps___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000039299	
SUFFIX		
RECON		
DATE BOARDED	20000607	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19830613	
DISCHARGE AUTHORITY	AR 635-200, ch 10 	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.