BOARD DATE: 18 February 2014 DOCKET NUMBER: AR20130010423 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his general discharge. 2. The applicant states he was discharged from the Army after a positive urinalysis test. After discharge he was notified by the Department of the Army that the test did not meet all scientific or legal requirements for use in disciplinary or administrative actions. 3. The applicant provides copies of: * his DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 13 May 2013 * his DD Form 214 (Certificate of Release or Discharge from Active Duty) * an undated, Office of the Deputy Chief of Staff for Personnel, letter CONSIDERATION OF EVIDENCE: 1. 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. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 20 October 1981. He completed training and was awarded military occupational specialty 13E (Cannon Fire Direction Center Specialist). The highest rank/grade he attained was specialist four (SP4)/E-4. 3. His records show he served in Germany from 27 February 1982 to 8 January 1984 and he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar, Expert Marksmanship Qualification Badge with Grenade Bar, Army Service Ribbon, and Overseas Service Ribbon. 4. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 21 October 1983 and 19 December 1983, for knowingly and wrongfully using marijuana. 5. A General Counseling Form, dated 3 January 1983, shows the applicant was counseled on 21 December 1983, after a second NJP, pertaining to drugs. He was being considered for a Chapter 9 discharge. The counselor recommended the applicant receive an honorable discharge based upon his past duty performance. 6. A 4 January 1984, Headquarters, Hanau Military Community memorandum shows the applicant had been enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 29 November 1983 as a command referral for cannabis abuse. His progress was not satisfactory and he was declared a rehabilitation failure of 29 December 1983. 7. His immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation 635-200. The immediate commander indicated that since the applicant's assignment to his unit his conduct had been satisfactory; however, his persistence in using drugs contradicted Army policy and was a deterrent to good order and discipline within the unit. 8. On 5 January 1984, he acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for ADAPCP failure, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He further indicated he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and he submitted a statement on his own behalf in which he admitted the two positive urinalysis test results and that no injustice was being done to him. He further stated he did not understand the policies of the battalion, in that, he saw another Soldier be allowed to transfer with five positive test results and another allowed to leave with seven. Because of those examples he requested an honorable discharge. 9 His commander initiated separation action against him in accordance with Army Regulation 635-200, chapter 9, by reason of ADAPCP rehabilitation failure. He stated that the applicant had received positive urinalysis test results for THC on 21 October and 29 November 1983. Additionally, he had been referred to the community counseling center (CCC) on 21 November 1983 and was determined to be a rehabilitation failure. 10. On 5 January 1984, the separation authority approved the applicant's discharge and directed the applicant be furnished a General Discharge Certificate. The applicant was accordingly discharged on 10 January 1984. 11. The applicant's DD Form 214 confirms he was discharged with a characterization of service of under honorable conditions by reason of being a drug abuse rehabilitation failure. He completed 2 years, 2 months, and 21 days of active duty service. 12. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 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 Soldiers 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. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in an entry-level status and an uncharacterized description of service is required. However, an honorable discharge is required if restricted-use information was used. 14. Army Regulation 635-200, paragraph 3-7a, 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. 15. In 1983, a 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 result was not scientifically or legally supportable for use in disciplinary or administrative actions. 16. 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 instance of positive urinalysis processed on the specimen submitted by the applicant on 21 October 1983 (presumably) did not meet the all scientific or legal requirements for use in disciplinary or administrative actions against him. 17. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his discharge should be upgraded. 2. The evidence of record shows the applicant had a drug abuse problem. He was provided with the opportunity to overcome his problem through counseling and referral to and enrollment in the ADAPCP; however, he showed poor rehabilitation potential in that he again tested positive for THC. He was therefore declared an ADAPCP rehabilitation failure and accordingly his immediate commander initiated separation action against him. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 3. The urinalysis of the specimen submitted by the applicant on 21 October 1983 was determined to not meet all scientific or legal requirements for use in disciplinary or administrative actions against him. However, he subsequently tested positive for THC and was determined to be a rehabilitation failure. 4. Based on his record of ADAPCP failure and positive drug test, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, an honorable discharge is not warranted. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __X___ ____X____ ___X_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________ X_______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20100012492 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130010423 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1