PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            6 July 2000                  
	DOCKET NUMBER:   AR1999030171

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 character of service be upgraded from a general discharge (GD) under honorable conditions to a fully honorable discharge (HD).  He also requests that the narrative reason for separation be changed.

3.  The applicant states that he believes that he was discharged as a result of illegal drug tests.  He submits in support of his request an undated letter from the Department of the Army, Office of the Deputy Chief of Staff for Personnel, Washington, DC, that states between 27 April 1982-31 October 1983, a percentage of urinalysis test results were not scientifically or legally supportable for use in disciplinary or administrative actions.  He also submits a copy of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty)

4.  On 28 April 1981, the applicant enlisted in the Regular Army for 4 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 35L (Avionics Communications Equipment Repairer).  The highest grade that he achieved was pay grade E-4.

5.  On 15 December 1981, he was assigned to Fort Hood, Texas.  On
24 January 1983, his urine specimen tested positive for marijuana.  On 18 March 1983, he was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for cannabis abuse. 

6.  On 5, 12, and 16 May 1983 and again on 9 June and 11 July 1983, his urine specimens tested positive for marijuana.

7.  On 9 June 1983, the applicant’s commander was notified that the ADAPCP had recommended that he be declared a drug abuse rehabilitation failure due to his inability to meet the requirements of the ADAPCP.

8.  On 17 June 1983, a mental status evaluation cleared the applicant for separation.  

9.  On 29 June 1983, the commander notified the applicant that he was being declared a drug abuse rehabilitation failure and that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 9, by reason of drug abuse-rehabilitation failure with a GD or an HD.  

10.  The commander included with the discharge packet a document which showed the basis for his decision was that the applicant’s urine specimens had tested positive on 5, 12, and 16 May 1983 and that between 18 March and 
6 June 1983, he missed six of his 13 ADAPCP appointments.

11.  On 20 June 1983, the applicant was advised of the basis for the contemplated action and its effects, and the rights available to him.  He stated that he desired further representation by legal counsel.  He did not submit a statement in his own behalf.  He was not entitled to consideration or a personal appearance before a board of officers.

12.  On 12 July 1983, competent authority approved the recommendation and directed the issuance of a GD, by reason of drug abuse-rehabilitation failure, under the provisions of chapter 9, Army Regulation 635-200.  

13.  On 19 July 1983, the applicant was discharged.  He had completed 2 years, 
2 months, and 22 days of creditable active military service and he had no recorded lost time.

14.  The available records do not indicate that the applicant ever made application for the review of his discharge to the Army Discharge Review Board.

15.  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 the ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program.  A member may also be separated if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  Army policy states that an HD or a GD is authorized depending on the applicant’s overall record of service.  However, an HD is required if restricted or limited use information is used in the discharge process.

16.  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 were not scientifically or legally supportable for use in disciplinary or administrative actions.

17.  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. 

18.  The review team discovered six urinalyses attributable to the applicant. Urinalysis specimens taken 24 January, 5, 12, and 16 May 1983 were determined to be either scientifically or legally defective.  However, urinalysis specimens taken on 9 June 1983 and on 11 July 1983 were supportable and proved that marijuana was in the applicant’s system on the dates of the tests. Both the scientific test procedures and the supporting chain of custody documents used were proper and met the criteria established by the Blue Ribbon Panel. 

19.  In accordance with chapter 6, Army Regulation 600-85, the limited use policy prohibits the use of the following evidence against a soldier in the issuance of the characterization of service in the separation process:  Mandatory urine or alcohol breath test results, ADAPCP monitoring tests, a soldier’s self-referral to ADAPCP and or voluntary admissions made as part of the enrollment process.  Use of limited use information during the separation process mandates an HD.

CONCLUSIONS:

1.  The Board noted that the government introduced a document into the separation process that showed three of the applicant’s urinalysis specimens tested positive during the period that he was enrolled in the ADAPCP.  In accordance with Chapter 6, Army Regulation 600-85, this was limited use information. 

2.  Therefore, the Board determined that the characterization of his service should be upgraded to an HD as a result of the use of limited use information during the separation process. 

3.  Further, the Board noted that even though the test which was the basis for his enrollment in the ADAPCP was found to be unsupportable, upon his enrollment in the ADAPCP he would have acknowledged that he had been informed and that he understood the requirement to abstain from use of illegal drugs and that he understood that he was required to cooperate/ participate in drug counseling and educational programs.  He disobeyed a lawful order when he continued to abuse drugs as evidenced by the supportable tests on 9 June and 11 July 1983.  He failed to meet the stipulations of the program; therefore, the reason for discharge was fully supported by the record.

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

RECOMMENDATION:

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

a.  by showing that the GD the individual concerned received on 
19 July 1983 is void and is without force or effect; 

b.  by showing that the individual concerned was separated from the service with an HD on 19 July 1983; and

c.  by issuing to the individual concerned an Honorable Discharge Certificate dated 19 July 1983, in lieu of the General Discharge Certificate of the same date now held by him.  

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

BOARD VOTE:  

__cmf___  __emw__  __jpi____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Calvin M. Fowler__
		        CHAIRPERSON

INDEX

CASE ID	AR1999030171	
SUFFIX		
RECON		
DATE BOARDED	20000706	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19830719	
DISCHARGE AUTHORITY	AR635-200, Chapter 9 	
DISCHARGE REASON	A69.00	
BOARD DECISION	PARTIAL GRANT	
REVIEW AUTHORITY		
ISSUES         1.	144.6900	
2.		
3.		
4.		
5.		
6.