PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           24 October 2002    
	DOCKET NUMBER:   AR2002072382

	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. Raymond V. O’Connor		Chairperson	
	Ms. Karen A. Heinz		Member	
	Ms. Barbara J. Ellis		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 narrative reason for separation be changed.

3.  The applicant states, in effect, that he never was offered drug rehabilitation. 

4.  The applicant’s military records show that he enlisted in the Regular Army on 20 July 1981 for a period of 3 years.  He successfully completed basic and advanced individual training and was transferred to Germany for duty as a heavy vehicle driver.  

5.  On 13 October 1982, the applicant participated in the Army’s drug testing program.  The specimen he submitted was tested by urinalysis and was found to contain evidence of illegal drugs. 

6.  On 13 December 1982, the applicant was referred for treatment in the local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He entered Track II of the program, which required personal and group counseling.  At the time of his enrollment 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.  In January 1983 and on 5 April 1983, he submitted urine specimens that also tested positive for marijuana.  On 17 May 1983, he was declared a rehabilitation failure based solely on those two positive urinalyses.

7.  On 3 March 1983, nonjudicial punishment was imposed against the applicant for drunk driving.  His punishment consisted of a reduction to E-3, extra duty and restriction.

8.  On 6 May 1983, the applicant was recommended for discharge under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.  The unit commander based his recommendation for separation on the applicant’s record of illegal drug offenses. 

9.  On 17 May 1983, the separation authority approved the recommendation and directed the issuance of a General Discharge Certificate.  The applicant was discharged on 27 May 1983.    

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 was not scientifically or legally supportable for use in disciplinary or adverse 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.

12.  The review team specifically examined the applicant's test results and determined that either the scientific test procedures or the supporting chain of custody documents used, or both, were deficient.  Consequently, a conclusion that the applicant's urine specimens contained illegal drugs would not be legally and/or scientifically supportable.

13.  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 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.

CONCLUSIONS:

1.  The positive urinalyses of the specimens submitted by the applicant on 13 October 1982, in January 1983 and on 5 April 1983 were either legally or scientifically unsupportable and could not rightfully serve as the basis for adverse administrative or disciplinary actions.

2.  Continued reference to the unsupportable urinalyses would be prejudicial and improper.  Accordingly, it would be in the best interest of justice to delete from his military personnel and medical records, any and all references to the positive urinalyses of the specimens he submitted on 13 October 1982, in January 1983 and on 5 April 1983.

3.  The applicant was properly referred to the ADAPCP for treatment and rehabilitation.  He was declared a rehabilitation failure solely on the basis of unsupportable urinalyses.  Accordingly, that declaration, and the discharge that was based upon it, were improper and should be voided.

4.  Since the applicant’s enlistment would not have expired until 19 July 1984, and since there is good reason to conclude that, but for the unsupportable urinalyses, and the declaration that he was a rehabilitation failure, he would have remained on active duty to complete that enlistment, it appears appropriate and proper to void his current discharge, to grant him full active duty credit through his scheduled expiration term of service (ETS) and to issue him an Honorable Discharge Certificate, effective the date of his scheduled ETS. 
5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:  

	a.  by voiding the discharge under honorable conditions which was issued to the individual concerned on 27 May 1983, and by showing that he continued to serve on active duty until 19 July 1984, when he was separated from the service with an Honorable Discharge Certificate, by reason of ETS, under the provisions of chapter 4, Army Regulation 635-200;

	b.  by returning to him all benefits and property he lost as the result of his discharge under honorable conditions; and 

	c.  by deleting from his military personnel and medical records any and all references to the positive urinalyses of the specimens he submitted on 13 October 1982, in January 1983 and on 5 April 1983.

BOARD VOTE:  

RVO___  KAH_____  BJE_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O’Connor__
		        CHAIRPERSON

INDEX

CASE ID	AR2002072382	
SUFFIX		
RECON		
DATE BOARDED	20021024	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19830527	
DISCHARGE AUTHORITY	AR 635-200, Chapter 9	
DISCHARGE REASON	Drug Abuse Rehabilitation Failure	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.	126.0400	
3.		
4.		
5.		
6.