PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            4 September 2003
	DOCKET NUMBER:   AR2003086915

	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	
	Mr. Luis Almodova		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Frank C. Jones		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, in effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

3.  The applicant states, in effect, that he was awarded honorable achievement in his military occupational specialty (MOS) at all times during his enlistment.  He cannot understand about his chapter discharge and dishonorable MOS. 

4.  To support his application, the applicant submitted a VA (Department of Veterans Affair) Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), along with 14 pages of written materials pertinent to his claim for compensation for exposure to radiation; a copy of his birth certificate issued by the State of Louisiana; and a SSA (Social Security Administration) Form 8001-F5, Receipt for Your Claim for Supplemental Security Income, with three related documents.

5.  The applicant’s military records show that the applicant enlisted in the Regular Army for 4 years on 1 October 1982.  The applicant enlisted with an enlistment option of being trained as a Cannon Crewman, military occupational specialty (MOS), 13B.

6.  The applicant successfully completed one stop unit training at Fort Sill, Oklahoma, and was awarded the MOS 13B, on 6 December 1982.  Following this training, he was assigned to Battery C, 3rd Battalion, 34th Field Artillery, Fort Lewis, Washington, on 10 February 1983.

7.  The applicant was promoted to the rank and pay grade, Specialist Four, E-4, on 1 February 1984.

8.  The applicant’s records show that the highest rank and pay grade he held on active duty was Specialist Four, E-4.  The record contains evidence of achievements deserving of consideration in these proceedings.

9.  The applicant was awarded a certificate of completion for having completed the Field Artillery Mechanic Course, Class Number 2-83 at Fort Sill, Oklahoma, during the period 14 through 28 January 1983.

10.  The applicant was awarded a certificate of completion for having completed a Special Field Artillery Mechanic Course, at Fort Sill, Oklahoma, during the period 13 through 24 June 1983.

11.  On 26 August 1983, the applicant was awarded a certificate for successfully completing one hundred miles of running as a member of the "Run for Your Life Club."

12.  On 28 December 1983, the applicant was awarded a certificate for successfully completing two hundred miles of running as a member of the "Run for Your Life Club."

13.  On 31 August 1983, the applicant was awarded a Certificate of Achievement by the Commander, 3rd Battalion, 34th Field Artillery, for exceptionally meritorious service from 22 June 1983 to 4 August 1983, for his intense devotion to duty and superior efforts in the area of logistics, which were instrumental in the battalion earning the 9th Infantry Division's Quarterly Maintenance Award.  The applicant's attention to detail and sense of mission accomplishment set him apart from his peers.  His abilities, added the battalion commander, served as a model for emulation and his outstanding achievement was in the highest traditions of military service and reflected distinct credit upon himself, his unit, and the United States Army.

14.  On about 14 September 1983, the applicant tested positive for THC (tetrahydrocannabinol).  The applicant was command enrolled in the Drug and Alcohol Abuse Program, presumably after this positive urinalysis test in view of the fact that no other positive urinalysis test results were found in the records.  [A finding was made in the processing of this case that the positive urinalysis test results were deficient and unsupportable.]

15.  At about 1718 hours, 16 March 1984, the applicant was found to be in possession of two hand-rolled cigarettes, which were field tested and found to contain marijuana.  The cigarettes were found in the applicant's wall locker during a unit-conducted health and welfare inspection.  When confronted with the find, the applicant waived his rights and admitted ownership of the evidence.

16.  On 3 April 1984, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully possessing marijuana, on 16 March 1984.  The punishment imposed consisted of a reduction to Private, E-2, a forfeiture of $334.00 for two months (suspended second month until 2 July 1984) and 30 days extra duties and restriction.  The applicant did not appeal the punishment.

17.  On 20 April 1984, the unit commander advised the applicant of his contemplated action to initiate his separation under the provisions of chapter 14, Army Regulation (AR) 635-200 for commission of a serious offense.

18.  On 24 April 1984, the applicant consulted with legal counsel and requested appearance before and consideration of his case by a board of officers.

19.  In his request, the applicant acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general, under 
honorable conditions, discharge was issued him.  The applicant stated that he understood further that, as a result of issuance of a discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State law; and that he may encounter substantial prejudice in civilian life by reason of an under other than honorable discharge.

20.  On 4 May 1984, the unit commander initiated action to separate the applicant from the service under the provisions of chapter 14, AR 635-200, for commission of a serious offense.  The applicant's unit commander asked that rehabilitative transfer be waived because in his judgment, the service member was not amenable to rehabilitation and a reassignment transfer was unwarranted.  The unit commander added that the applicant had attended and completed Track I of the ADAPCP, had been permanently disqualified [from the Personnel Reliability Program] due to an initial positive urinalysis, and was again caught with the substance.  The applicant showed no desire to stop.

21.  Information pertinent to the applicant's enrollment and attendance in the ADAPCP is not available because the 9th Infantry Division Staff Judge Advocate advised that this information should be withheld from the board of officers, which was to consider his case, because it was prohibited from being presented to the board.

22.  During board proceedings, the unit commander testified that he [the unit commander] would not tolerate drug use in his unit.  He also testified that the applicant's work performance was good and that he seemed to get along well with others.  The discharge action, he testified, was submitted because it was mandated by regulation and that he did not deserve an UOTHC Discharge.

23.  The unit first sergeant testified that he also did not condone drug use.   He tried to get rid of it in his unit, if he was aware of it because according to regulations, it cannot be tolerated.  He described the applicant's work performance as good and testified that he had not received any complaints about him.  In comparison to other soldiers, the applicant was described by the first sergeant as average and he felt that the applicant deserved a general discharge.

24.  The applicant's section sergeant testified that he was totally against drug use.  He had supervised the applicant since his arrival [the section sergeant's] in November 1983.  He saw him on a daily basis and his performance was rated as excellent as compared to the rest of the section.  He did what he was told to do 

and took the initiative to get things done.  His SQT (Soldier's Qualification Test) Score was in the 70s and he scored within the top 15% of the section.  The applicant always had a good attitude and was always in a high state of appearance.  [SQT results on file in the applicant's service records show that he scored an 81 in a test administered on 12 March 1984.]

25.  The battery executive officer testified that he had been in the battery since February 1984 and was responsible for operation of the firing batteries.  Because his dealings were mostly with the section chiefs, he did not know the applicant personally and had very little dealings with him.  The executive officer described the applicant's performance of duty as average.  He added that the applicant had not caused any trouble and nothing had been brought to his attention.

26.  Under direct examination, the applicant testified about his life and a variety of experiences, to include some related to drug use by him and others close to him.  He testified that most of his friends used drugs but that did not influence him.  He tried to stay away from drugs.  He had experienced marijuana and used it only rarely.  He did not consider himself an occasional marijuana user and stated that he had used marijuana twice during the last two years.  He testified that the commander had told him that the positive urinalysis was not valid but that further drug-related incidents would lead to his dismissal from the Army.  He testified that for him to be completely away from marijuana would be impossible because a lot of people used marijuana. 

27.  Among the documents presented as Government exhibits to the board of officers was a Urinalysis Custody and Report Record, which reflected that the applicant's urine sample was positive for THC.  [The positive urinalysis test results were deficient and unsupportable.]

28.  The board, after carefully considering the evidence before it, found the applicant undesirable for further retention in the military service and recommended that an UOTHC Discharge Certificate be issued.

29.  On 8 August 1984, the approval authority, a major general, approved the recommendation made by the board of officers and directed that an UOTHC Discharge Certificate be issued.  He further directed that the applicant be reduced to the lowest enlisted rank and pay grade immediately.  The applicant was reduced to the rank and pay grade of Private, E-1, on 8 August 1984 in accordance with Orders 166-10, Headquarters, I Corps and Fort Lewis, dated 16 August 1984.

30.  On 23 August 1984, the applicant was discharged in the rank and pay grade, Private, E-1, under the provisions of chapter 14, AR 635-200, by reason of misconduct-drug abuse.  He was credited with 1 year, 10 months, and 23 days active military service.  The applicant had no lost time due to absence without leave or confinement.

31.  The applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge on 1 October 1984.  On 16 August 1985, the applicant was notified that after careful consideration of his military records and all other available evidence the Army Discharge Review Board determined that he had been properly and equitably discharged.

32.  On 24 September 1985, the applicant requested a personal appearance before the ADRB.  On 22 November 1985, he followed up with notification to the ADRB that, "As of this moment, I am not able to obtain a counsel."  On 27 February 1986, the applicant was notified that he would be scheduled for a personal appearance before the ADRB in Washington D.C. or before a traveling board closest to the location he requested in his DD Form 293, Application for Review of Discharge or Dismissal from the Armed Forces of the United States.  On 13 November 1986, the applicant notified the ADRB that he would appear before the ADRB traveling board in New Orleans on 11 February 1987.  The applicant failed to appear before the board.  Because he did not appear for the scheduled hearing and did not notify the board about his inability to appear before the board until 12 February, his case was closed with no action because his case had previously been considered by the board on a records-only review.

33.  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 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.

34.  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.

35.  The review team specifically examined the test results of the specimen submitted by the applicant on 14 September 1983 and determined that the scientific test procedures were supportable but the supporting chain of custody documents used were deficient for that specimen.

36.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Abuse of illegal drugs is serious misconduct and separation action normally will be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  Therefore, single drug abuse incidents may be combined with one or more minor disciplinary infractions and processed under paragraph 14-12a (Minor Disciplinary Infractions) or 14-12b (A Pattern of Misconduct), or under chapter 13, Separation for Unsatisfactory Performance.  Paragraph 14-12d(2), added in Interim Change No. IO5 to AR 635-200, then in effect, specified in subparagraph "d" that ". . . . Other personnel (first-time offenders, grades E1-E5) may be processed for separation as appropriate.  'Processed for separation' means that separation action will be initiated and processed through the chain of command to the appropriate separation authority for a determination as to whether processing is required.  . . . . (2)  Second time drug offenders, grades E-1 through E-9.  All personnel must be processed for separation after a second offense."

37.  AR 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

38.  AR 635-200 also defines a general discharge as a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.

39.  Paragraph 1-14, AR 635-200, then in effect, specified that when a member is to be discharged under other than honorable conditions, the convening authority will direct an immediate reduction to the lowest enlisted grade per AR 600-200, chapter 8, section IV.

CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge issued is not commensurate with the applicant’s overall record of military service. 

2.  The evidence of record shows that the applicant was referred to Track I of the ADAPCP by his unit commander and completed the program of instruction.  This referral was made based on an unsupportable urinalysis.

3.  After completion of this program, the applicant was found to have two marijuana cigarettes, in his possession, in his wall locker during a unit-conducted health and welfare inspection.  After this discovery, the applicant was honest and did not in any way try to provide an alibi or deny his involvement with marijuana.

4.  The record shows that the applicant was administered one Article 15 and one counseling during his Army service.  This one Article 15 was administered for the same violation that resulted in his separation from the Army.  The unit commander completed the lone written counseling when he advised the applicant that an administrative discharge was being initiated against him.

5.  The applicant elected to have his case considered by a board of officers rather than to just accept the discharge.  During the conduct of the board of officers, which voted to separate him from the service with an UOTHC, the unit commander testified that the reason the applicant was being recommended for separation was because it was mandated by regulation; the applicant was serving in pay grade E-2 and a second time drug offender and the regulation mandated that he be processed for separation.  He also testified that the applicant's work performance was good and that he seemed to get along well with others.

6.  The battery executive officer had been in indirect supervision over the applicant for just over one month and because his dealings were mostly with the section chiefs, he did not know the applicant personally.  He described the applicant's performance of duty as average.  The executive officer testified that the applicant had not caused any trouble and nothing had been brought to his attention.

7.  The unit first sergeant testified that he, like the unit commander and executive officer, also did not condone drug use in their unit.  He described the applicant's work performance as good and testified that he had not received any complaints about him.  In comparison to other soldiers, the applicant was described by the first sergeant as average and felt that the applicant deserved a general discharge.

8.  The applicant's section sergeant testified that he was also totally against drug use.  He had supervised the applicant since November 1983.  He saw him on a daily basis and rated his performance as excellent, as compared to the rest of the section.  The section sergeant added that he does what he is told to do and takes the initiative to get things done.  His SQT (Soldier's Qualification Test) Score was in the 70s (sic) and he scored within the top 15% of the section.  The applicant always had a good attitude and had always presented himself in a high state of appearance.

9.  The applicant testified before the board of officers and admitted to having used marijuana on rare occasions but did not consider himself to be an occasional user.  He tried to stay away from drugs and was not influenced by his friends to use drugs.  He acknowledged that his unit commander counseled him and was specifically told that the positive urinalysis that he had was not valid.

10.  The evidence of record shows that the review team found that the urine specimen submitted on 14 September 1983 by the applicant was found to be defective, and in fact not valid.  The review team determined that the scientific test procedures were supportable but the supporting chain of custody document used was deficient for that specimen.

11.  There is no evidence that the ADRB was aware that the urine specimen that the applicant provided which led to his command-directed enrollment in the ADAPCP was defective and should not have been weighed in the balance in consideration of his case.

12.  While the Board does not condone the applicant’s use of drugs, the nature of the misconduct for which he was discharged, unlawful possession of two cigarettes which contained marijuana, was relatively minor in that it was a violation of good order and discipline and was not in any way a crime wherein violence was demonstrated.

13.  Accordingly, the Board concluded that the applicant's discharge, in reality, was based on a single supportable drug offense and hence, the discharge was too harsh.  The Board finds that his discharge should be upgraded from under other than honorable conditions to a general (under honorable conditions) discharge.

14.  The applicant was reduced to the rank and pay grade, Private, E-1, on 8 August 1984 and was discharged on 23 August 1984.  The applicant should have been discharged in the rank and pay grade, Private, E-2.  He is entitled to be restored to the pay grade E-2 and to the difference in pay for these 16 days.

15.  The applicant has not made any contention that the misconduct, which led to his discharge, was in any way related to radiation exposure.  There is no indication or evidence in the applicant's service personnel records that he was in any way exposed to radiation or participated in a project that required him or other soldiers to be exposed to radiation.

16.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

a.  showing that the individual concerned was discharged on  
23 August 1984 with a general (under honorable conditions) discharge, in the rank and pay grade, Private, E-2;

	b.  directing the Defense Finance and Accounting Service to calculate and pay the applicant the difference in pay for a Private, E-1 and a Private, E-2, for the period 8 through 23 August 1984, a total of 16 days;

c.  issuing the applicant a general discharge certificate, dated 23 August 1984, in lieu of the under other than honorable conditions discharge certificate currently held by him; and

d.  deleting all references to the unsupportable urinalysis test and associated results related to the 14 September 1983 urinalysis.

2.  That so much of the application as is in excess of the foregoing, an upgrade of the applicant's discharge to fully honorable, be denied.

BOARD VOTE:  

___fcj___  ___bje___  _rvo____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2003086915	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/09/04	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000/discharge	
2.  		
3.		
4.		
5.		
6.