PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           1 February 2001                   
	DOCKET NUMBER:   AR2000046619

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		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 discharge be upgraded to honorable and all other benefits due him.  

3.  The applicant states that three other individuals took a urinalysis test at the same time he did.  The others received correspondence informing them the samples had been tampered with.  By that time, he had already been discharged.

4.  The applicant's military records show that he enlisted in the Regular Army on 9 July 1980 for 4 years. 

5.  On 14 April 1983, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty on three separate occasions.  His punishment was a reduction to pay grade E-3, restriction for 14 days and extra duty for 14 days.

6.  On 18 May 1983, the commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, chapter 9 for drug abuse rehabilitative failure.  The commander noted that the applicant had first been enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 17 March 1983 as a command referral as he had been implicated on 4 February 1983 as a distributor of drugs in a major drug incident.  Two subsequent positive urinalysis tests were received by the applicant on 27 and   29 April 1983 for THC (marijuana).

7.  On 20 May 1983, the ADAPCP counselor and the clinical director confirmed that the applicant had been enrolled in Track I of the ADAPCP as a preventative measure after his command referral for suspected possession of hashish.  He was being considered for disenrollment from the program when it was learned that he had a positive result for THC from a 27 April 1983 urinalysis test.  It was recommended that the applicant be declared a rehabilitative failure and receive a chapter 9 discharge.

8.  On 21 June 1983, the applicant acknowledged notification of the action.

9.  The appropriate authority approved the recommendation and directed he given a General Discharge Certificate.

10.  On 16 August 1983, the applicant was discharged, with a general discharge under honorable conditions, in pay grade E-3, under the provisions of Army Regulation 635-200, chapter 9, drug abuse – rehabilitation failure.  He had completed 3 years, 1 month and 8 days of creditable active service and had no lost time.  His separation code was JPC (drug abuse rehabilitation failure) and he 
was given reenlistment codes of RE-3 (not qualified for continued Army service but the disqualification is waivable) and RE-3C (persons who do not meet the reentry grade and service criteria of Army Regulation 601-210).
11.  The Criminal Investigation Command has confirmed that the applicant was investigated for wrongful possession of marijuana (hashish), date of offense        4 February 1983.  Based upon the advice of the Staff Judge Advocate, the charges could not be prosecuted due to a lack of proof.  He had also been investigated for the same offense, date of offense 4 August 1981.  The Commander’s Report of Disciplinary or Administrative Action, DA Form 4833, indicated that no action was taken due to insufficient evidence.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 provides for the discharge of members based on alcohol or other drug abuse such as the illegal, wrongful or improper use of any controlled substance, alcohol or other drug when the soldier in enrolled in ADAPCP and the commander, in consultation with the rehabilitation team, determines that further rehabilitation efforts are not practical, rendering the soldier a rehabilitative failure.  

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 (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 27 April 1983, the second on the specimen submitted by the applicant on 29 April 1983.  The team specifically examined each of the test results and determined that in each case either the scientific test procedures or the supporting chain of custody documents used, 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.

15.  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. 

16.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.

CONCLUSIONS:

1.  The urinalysis of the specimens submitted by the applicant on 27 and 29 April 1983 were both unsupportable chemically and/or legally and could not be properly used as a basis for disciplinary or unfavorable administrative action.  Any and all references to the urinalyses should be deleted from his records and any administrative action taken solely because of those urinalyses should be corrected.

2.  The Board finds that it would be in the interest of justice to waive the 3-year statute of limitations.  The Board’s objective is to return the applicant to the position he held prior to the unsupportable urinalyses.  Accordingly, it would be appropriate to delete from his military personnel and medical records, if available, any and all references to the positive urinalysis of the specimens he submitted on 27 and 29 April 1983 and by voiding the discharge action based upon those positive urinalyses.

3.  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 deleting from the military personnel and medical records, if available, of the applicant any and all references to the positive urinalysis of the specimens he submitted on 27 and 29 April 1983.

2.  That all references to the applicant’s separation under the provisions of Army Regulation 635-200, chapter 9 be deleted from his military personnel records.

3.  That the applicant’s discharge of 16 August 1983 be voided and the records be corrected to reflect that he remained on active duty until his normal expiration term of service of 8 July 1984.

4.  That the applicant’s Certificate of Release or Discharge from Active Duty,   DD Form 214, be corrected to show he separated on 8 July 1984 after completing 4 years of net active service with an honorable discharge under the provisions of Army Regulation 635-200, chapter 5-3, Secretarial Authority, with separation code JFF.  

5.  That the applicant be paid any and all due pay and allowances as a result of the above correction.

6.  That following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal will be returned to the Board for permanent filing.

BOARD VOTE:  

__lls___  __jea___  __bjl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000046619	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19830816	
DISCHARGE AUTHORITY	AR 635-200, ch 9	
DISCHARGE REASON	A69.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.