PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           4 April 2002     
	DOCKET NUMBER:   AR2002066456

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Karen Y. Fletcher		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.

3.  The applicant states, in effect, that his discharge should be upgraded because his positive urinalysis did not meet all scientific or legal requirements for use in disciplinary or administrative action.  In support of his application, he submits an undated letter from the Office of the Deputy Chief of Staff for Personnel, Subject: Correction of Military Records, Positive Urinalysis Tests During the Period 
April 27, 1982 through October 31, 1983.    

4.  The applicant’s military records show that he enlisted on 30 July 1980 for a period of 3 years.  He successfully completed training at Fort Leonard Wood, Missouri, was assigned military occupational specialty 12F (engineer tracked vehicle crewman) and was transferred to Germany for duty on 14 December 1980.  His highest grade held was specialist four/pay grade E-4.

5.  On 5 January 1983, the applicant was referred for treatment in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) based on a urine specimen that tested positive for marijuana on 29 November 1982.  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 26 February 1983, the applicant completed the program.
 
6.  On 20 April 1983, the applicant submitted a urine specimen which tested positive for marijuana.  As a result, he was declared a rehabilitation failure.   

7.  On 8 June 1983, nonjudicial punishment was imposed against the applicant for use of marijuana as detected by the 20 April 1983 positive urinalysis.  His punishment consisted of a reduction to private first class/pay grade E-3, a forfeiture of pay and extra duty.  

8.  On 14 June 1983, the applicant was recommended for discharge under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.  The discharge authority approved the recommendation on 7 July 1983 and directed that the applicant be furnished a general discharge.  The applicant was discharged on 13 July 1983.  
  
9.  The records indicate that additional urine specimens submitted by the applicant and tested on 18 January 1983 and 17 May 1983 (two specimens) all tested positive for marijuana use. 

10.  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 were not scientifically or legally supportable for use in disciplinary or administrative actions.

11.  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.  Individuals whose tests results were all supportable and those who had a combination of supportable and unsupportable results were sent the same letter.

12.  The review team specifically examined the test results of one of the specimens submitted by the applicant on 17 May 1983 and determined that either the scientific test procedures or the supporting chain of custody documents used, or both, were deficient for that specimen.

13.  All the remaining specimens, including the other specimen submitted on 
17 May 1983, were found to have met the strict standards set by the Blue Ribbon Panel, and were sufficient to form the basis for nonjudicial punishment and administrative discharge.  

14.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

15.  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 the Alcohol and Drug Abuse Prevention and Control Program (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.  At the time of the applicant's separation an honorable or general discharge was authorized. 

CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because his positive urinalysis did not meet all scientific or legal requirements for use in disciplinary or administrative action is not supported by the evidence of record. Evidence of record shows that the applicant provided two urine specimens on 
17 May 1983, one is supportable and one is unsupportable.  At this late date it cannot be determined which specimen is which.  Therefore, the Board has declared that both of these specimens are unsupportable and that all references to these specimens be deleted from the applicant’s records. 

2.  All of the remaining positive urinalyses are supportable and sufficient to serve as the bases for adverse administrative or judicial action.

3.  Accordingly, the nonjudicial punishment imposed against the applicant on 
8 June 1983 that was based on the 20 April 1983 positive urinalysis is appropriate and proper.

4.  The applicant was properly referred to the ADAPCP for treatment and rehabilitation.  He was declared a rehabilitation failure on the basis of a urinalysis which has been found supportable.  Accordingly, that declaration, and the discharge which was based upon it, were proper and should not be voided. 

5.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only 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 of the individual concerned any and all references to the urinalyses of the specimens which he submitted and which were tested on 17 May 1983. 

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

BOARD VOTE:  

AAO___  RWA____  KYF_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Arthur A. Omartian______
		        CHAIRPERSON

INDEX

CASE ID	AR2002066456	
SUFFIX		
RECON		
DATE BOARDED	20020404	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19830608	
DISCHARGE AUTHORITY	AR 635-200, Chapter 9	
DISCHARGE REASON	Drug Abuse Rehabilitation Failure	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.	126.0400	
3.		
4.		
5.		
6.