PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 July 2002
	DOCKET NUMBER:   AR2002071850

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Donald P. Hupman, Jr.		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 rank and pay grade be restored.  He states that he was notified his urinalysis test was in error.  He provides no supporting evidence.

3.  The applicant’s military records show that he enlisted in the Regular Army on 3 February 1981.

4.  On 25 May 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for knowingly and willfully using marijuana on or about 7 April 1983.  His punishment was a reduction to Private, E-2 (suspended for 6 months), a forfeiture of $150 pay for 2 months, and extra duty for 14 days.

5.  On 12 July 1983, the applicant accepted NJP under Article 15, UCMJ for operating his privately owned vehicle on post while his driving privileges were suspended, failing to go to physical training test formation, and failing to go to his appointment with the battalion commander.  His punishment was a reduction to Private, E-2 and extra duty for 25 days.  

6.  On 2 February 1984, the applicant was honorably released, in the rank of Private, E-2,  from active duty upon completing his term of service.

7.  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.

8.  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 one positive urinalysis, processed on the specimen submitted by the applicant on 7 April 1983.  The team specifically examined the test results and determined that the scientific test procedures and the supporting chain of custody documents used were deficient.  Consequently, a conclusion that the applicant’s urine specimen contained illegal drugs would not be legally and/or scientifically supportable.

9.  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.  

CONCLUSIONS:

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 evidence of record shows that the applicant was not reduced to Private, E-2 because of the 25 May 1983 Article 15 issued as a result of the urinalysis test (which suspended the reduction).  He was reduced as a consequence of his 12 July 1983 Article 15.  It has been determined that the misconduct for which he received the 12 July 1983 Article 15 in and of itself was serious enough to warrant a reduction.

3.  The positive urinalysis results upon which the applicant’s 25 May 1983 Article 15 was based was determined to be neither scientifically or legally supportable for use in disciplinary or administrative actions.  Therefore, it would be equitable to now remove that Article 15 from his records.

4.  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 expunging the Article 15 dated 25 May 1983 from the applicant’s records.

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

BOARD VOTE:  

__FNE__  __MHM__  __DPH__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						      ___Fred N. Eichorn___
							CHAIRPERSON

INDEX

CASE ID	AR2002071850	
SUFFIX		
RECON		
DATE BOARDED	2002/07/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	PARTIAL GRANT	
REVIEW AUTHORITY		
ISSUES         1.	133.00	
2.		
3.		
4.		
5.		
6.