BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20150004044 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests upgrade of the applicant’s discharge to honorable, with a narrative reason and separation designator (SPD) code to reflect "Secretarial Authority." Counsel further requests the applicant be placed on the Retired List in the rank/grade of sergeant first class (SFC)/E-7, effective April 1991. 2. Counsel states the applicant was wrongfully and unjustly discharged from the U.S. Army in 1991 as a result of an improperly labeled urine specimen bearing the applicant’s name but the wrong social security number (SSN). As a result of bullying he requested a discharge in lieu of a court-martial. This unjust action continues to torment the applicant in his daily life and he now seeks to have his records corrected to rectify this error. 3. Counsel provides: * résumé * 5-page legal brief * character references * certificates of recognition and achievement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 2-1 (Personnel Qualification Record), Section VII (Current and Previous Assignments) 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. Having prior service, the applicant enlisted in the U.S. Army Reserve (USAR) on 11 February 1976 and served as a field artilleryman and infantryman. The highest rank/grade he held was SFC/E-7. 3. The applicant was ordered to active duty on 31 January 1991 in support of Operation Desert Shield/Desert Storm. On 6 March 1991, the Alcohol Drug and Prevention Control Program (ADAPCP) urinalysis field testing program identified his specimen as being positive for “THC” (the active component of marijuana). A memorandum from the Chief, Alcohol and Drug Division, Fort Jackson, SC, stated: a. Field test results do not constitute justification for disciplinary or administrative actions against the individual. Confirmation by the Forensic Toxicology Drug Testing Laboratory (FTDTL) is expected in 3 to 4 weeks. Prior to receipt of the confirmatory testing results from the Fort Meade laboratory, commanders may use positive prescreening results only for the following purposes: (1) Referral to the ADAPCP Community Counseling Center for screening. (2) Temporary transfer, removal, or suspension from duty of personnel serving in sensitive duty positions or in positons where drug abuse presents an immediate danger to the safety, health, or welfare of others. (3) Temporary suspension of access to classified information. b. Referral to ADAPCP on a positive field test is optional; it becomes mandatory on an official confirmation. The ADAPCP does not recommend referral for initial screening/enrollment until FTDTL results are confirmed as positive unless there is suspicion of drug use independent of this test. 4. His record contains a DA Form 2823 (Sworn Statement) taken at the U.S. Army Criminal Investigation Command (CID), Fort Jackson, on 13 March 1991. In this statement, the applicant admited to taking two puffs of a marijuana cigarette at a party because of peer pressure but denied using, buying, or selling any illegal drugs. He further stated that he had not used drugs since that time. 5. On 20 March 1991, court-martial charges were preferred against him for the wrongful use of marijuana between 3 February and 4 March 1991. 6. On 25 March 1991, after consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In doing so, he acknowledged: * he had not been coerced with respect to his request for discharge * by requesting this discharge, he was admitting guilt to the charges against him * he understood he could be discharged with an under other than honorable conditions (UOTHC) characterization of service and the results of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration. * that once his request for discharge was submitted, it may be withdrawn only with consent of the commander exercising general court-martial authority, or without that commander’s consent, in the event trial results in an acquittal or the sentence did not include a punitive discharge even though one could have been adjudged by the court 7. He waived his rights and elected not to submit a statement in his own behalf. 8. On 2 April 1991, the FTDTL notified the applicant’s commander that the applicant’s specimen, field tested on 5 March 1991 and found to be positive for drug use, had been forwarded to them for additional tests. Results of this additional testing found the specimen to be negative. As such, any administrative or disciplinary action against the Soldier for this particular specimen was to be negated. 9. On 3 April 1991, the appropriate separation authority approved the applicant’s request and directed the issuance of a UOTHC discharge and reduction to private (PV1)/pay grade E1. 10. His DD Form 214 shows he was discharged accordingly on 5 April 1991. He completed 2 months and 5 days of net active service this period. He completed 1 year, 11 months, and 22 days of total prior active service, and 14 years, 11 months, and 20 days of total prior inactive service. The form also contains the following entries: * item 4a (Grade, Rate or Rank) - "PV1" * item 4b (Pay Grade) - "E1" * item 5 (Date of Birth) - 20 December 1952 * item 12h (Effective Date of Pay Grade) - 3 April 1991 * item 24 (Character of Service) - UOTHC * item 25 (Separation Authority) - Army Regulation 635-200, chapter 10 * item 26 (Separation Code) - "KFS" * item 28 (Narrative Reason for Separation) - "For the good of service-in lieu of court-martial" 11. On 9 October 1991, the applicant petitioned the Army Discharge Review Board (ADRB) to rescind his undesirable discharge, return him to active reserve duty, and restore his rank to SFC. He contended that his sworn statement, dated 13 March 1991, was false and made under coercion. He further contended the CID Special Agent (CID SA) suggested much of the content and told him things would go much better for him by making such a statement. Finally, he argued that the test was not administered correctly because the vials were not sealed and he was not asked to initial the vial containing his specimen for proper identification. 12. On 14 December 1992, the ADRB found the rights of the applicant were protected during the discharge process and all requirements of law and of regulation were met. However, the Board noted the applicant had over 17 years of military service with outstanding performance of duty and achievements well documented in his record. Based on his overall service and duty performance, the Board found his characterization of service to be too harsh. The Board granted partial relief in the form of a general, under honorable conditions discharge and restored his rank to SFC/pay grade E-7. His DD Form 214 was reissued as a result of this decision. 13. His DA Form 5016 (Chronological Statement of Retirement Points) shows he completed 16 years, 11 months, and 22 days of qualifying service for retirement. 14. During the processing of this case a DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), dated 15 May 1991, was requested from CID. This document shows in the narrative summary that: * on 11 March 1991, the Command Sergeant Major (CSM) provided the CID SA a copy of the positive field test results reflecting a positive result for marijuana pertaining to the applicant * on 3 April 1991, the CID SA met with Captain (CPT) ____ who provided a copy of the applicant’s negative FTDTL results for marijuana 15. Counsel’s arguments and response to the CID narrative summary are as follows: a. The urine sample container listed the applicant’s name, but the SSN on the container was incorrect. Rather than simply retesting the applicant or taking steps to investigate how the wrong SSN ended up on the container, his chain of command concluded that the applicant must have ingested an illegal substance and the administrative error was inconsequential. b. The applicant’s chain of command should have conducted a thorough investigation into the urinalysis procedures to see if administrative error could have inadvertently resulted in a different SSN being on the specimen and investigated whether the urine specimen provided actually came from the applicant. His separation from the service was unjust because he was ultimately discharged following a critical administrative error with his urinalysis. c. At the time court-martial charges were preferred, the applicant was facing a possible sentence at a federal penitentiary and a dishonorable discharge. He reluctantly accepted a discharge in lieu of trial by court-martial for the sake of his family. d. The applicant has always maintained his innocence since being informed that he failed a urinalysis in 1991. Despite knowing he had not consumed any illegal drugs, the threat of a federal conviction and a bad conduct discharge was presented to him by military investigators and lead to him to sign a confession. He felt he had no choice because he had to provide for his family. Unbeknownst to him until this information was received in February 2016, the FTDTL confirmed the applicant’s innocence 3 days prior to his discharge from the Army. e. In this instance the applicant has clearly and convincingly been a victim of a material error of fact and material error of discretion by his chain of command. His chain of command made a material error of discretion by moving forward with his discharge despite knowing the test results were negative and failing to negate any administrative or punitive actions pending against the applicant. Had the applicant known at the time, he easily would have withdrawn his request for discharge and elected a court martial to fight the false allegations. 16. Counsel provides certificates of recognition and achievement from the applicant’s current employer and his professional resume. 17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 specifies: a. A member who committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges had been preferred and must include the individual's admission of guilt. b. Withdrawal of request for discharge will not be considered unless trial results in an acquittal or the sentence does not include a punitive discharge, even though one could have been adjudged by the court, a request for discharge submitted per this chapter may be withdrawn only with the consent of the commander exercising general court-martial jurisdiction. 18. Army Regulation 635 – 200 states 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. 19. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of KFS is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. 20. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) in effect at the time implemented the statutory authorities governing the granting of retired pay to Soldiers and former Reserve component Soldiers. Paragraph 2-1 states that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years (since changed to 6 years under certain circumstances) of his qualifying service as a Reserve component Soldier. 21. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. Counsel requests upgrade of the applicant’s discharge to honorable, with a narrative reason and SPD code to reflect "Secretarial Authority." In addition, he requests the applicant be placed on the Retired List in the rank/grade of SFC, effective 5 April 1991. 2. Counsel argues that flawed urinalysis procedures and the command’s failure to conduct a sufficient investigation into these procedures resulted in the applicant’s unjust discharge. Counsel further contends that the applicant has always proclaimed his innocence but he was lead to believe that an admission of guilt would make things go better for him. 3. The applicant tested positive for marijuana as the result of a field urinalysis conducted on 4 March 1991. However, prior to receiving the final negative test results his chain of command initiated a USACIC investigation despite ADAPCP guidance that field test results were not justification for disciplinary or administrative actions against the individual. As part of this investigation the applicant rendered a sworn statement admitting to smoking marijuana and affirmed his guilt upon request for discharge in lieu of court martial. 4. His chain of command was aware of the negative test results approximately 3 days prior to the applicant’s discharge but there is insufficient evidence to show there was or was not an attempt to negate all pending administrative or disciplinary actions nor is there sufficient evidence to show that the applicant was or was not informed of the negative test results. The only thing that can be determined is that evidence of negative test results does not equate to innocence or acquittal given the fact that the applicant had admitted to using marijuana. Nor can it be determined that if the applicant had this information that he would have elected court-martial knowing that his admission of guilt would be difficult to overcome. 5. The Board is not an investigative body thus there is no way to determine at this date if his chain of command had additional probable cause to initiate an investigation prior to receiving the final urinalysis test results or if there where extenuating circumstances forcing him to admit guilt to something that he claims he did not do. 6. Finally, counsel argues, in effect, that the applicant was denied due process when his chain of command failed to inform him that additional testing of his urinalysis sample was found negative for drug use and when they failed to stop all administrative or disciplinary action against him as required based on the negative test results. 7. In 1992 the ADRB considered his overall performance of duty and length of service and found the characterization of his service was too harsh. Although the ADRB found no procedural error they voted to upgrade his discharge to general, under honorable conditions and restore his rank to SFC/pay grade E-7; however, his narrative reason for separation and SPD code remained the same. 8. An 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. Based on the circumstances of this case the applicant’s general discharge, SPD code, and reason for separation are appropriate. 9. A review of his retirement points shows the applicant did not complete 20 qualifying years of service; therefore, he is not eligible to be placed on the Retired List. 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) AR20150004044 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004044 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1