BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017391 BOARD VOTE: ___x_____ ___x_____ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017391 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant a new DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 August 1983 showing the following entries: * item 24 (Character of Service): Honorable * item 25 (Separation Authority): Army Regulation 635-200, paragraph 5-3 * item 26 (Separation Code): JFF * item 27 (Reentry Code): NA * item 28 (Narrative Reason for Separation): Secretarial Authority ___________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. BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017391 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, in effect, that his under honorable conditions (general) discharge be upgraded to an honorable discharge. 2. The applicant states, in effect, that he received a general discharge for unsatisfactory performance due to unfitness for duty, based upon his inability to perform his assigned duties because of a positive urinalysis result for marijuana use. Additionally, he was unaware of a letter from the Army, which was sent to his parents and which he just recently discovered, which stated discrepancies were discovered in the processing of his urinalysis sample, which did not meet the legal requirements for use in disciplinary actions. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * FC Form 603 (Elimination Proceedings for Unsatisfactory Performance/Misconduct), dated 29 June 1983 * a letter from the applicant to Commander, 101st Aviation Battalion, subject: Statement for Chapter 13, dated 12 July 1983 * four reference statements on behalf of the applicant, all dated on or about 12 July 1983 * FC Form 2108 (Pre-Separation Processing/Interview), dated 3 August 1983 * Orders 148-92, issued by 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY on 3 August 1983 * a letter from the U.S. Army Central Personnel Security Clearance Facility, dated 16 September 1983, subject: Intent to Deny/Revoke Security Clearance, with acknowledgement letter from the applicant * an undated letter from the Office of the Deputy Chief of Staff for Personnel (DCSPER), Headquarters, Department of the Army, subject: Correction of Military Records, Positive Urinalysis Tests during the Period April 27, 1982 through October 31, 1983 * several personnel documents 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's military records are not available for review. The Board requested a copy of his records from the National Personnel Records Center in St. Louis, Missouri; however, none were located. A thorough review of the integrated Personnel Electronic Records Management System (iPERMS) and the Integrated Web Services (IWS) system also failed to reveal any records. However, the DD Form 214 and other documents he provides are sufficient for the Board to conduct a fair and impartial review of his case. 3. The applicant enlisted in the Regular Army on 11 August 1980. His record shows he served in military occupational specialty 67T (Tactical Transport Helicopter Repairer). 4. The applicant provides the following documentation: a. An FC Form 603, dated 29 June 1983, which shows the applicant's immediate commander notified the applicant of his intent to initiate elimination from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance. Specifically, he cited the applicant's unsatisfactory performance due to unfitness for duty, based upon the applicant's inability to work in his assigned MOS because of repeated occurrences of positive indications of marijuana use on urinalysis. The applicant acknowledged receipt of the notification of his pending separation action and understood he had the right to counsel and submit statements within seven days. However, there is no evidence that he consulted with counsel. b. A letter from the applicant to the Commander, 101st Aviation Battalion, dated 12 July 1983, subject: Statement for Chapter 13, which shows the applicant stated his desire that he not be chaptered out of the Army, citing his faithful service, achievements, and deployments/exercises and his belief that the urinalysis test was a false test and that the chain of custody rules were broken. c. Four character reference statements were submitted in reference to his pending chapter, from his platoon sergeants, his section sergeant, and a pilot, attesting to his stellar duty performance, technical skills, and professionalism. The four individuals recommended that he not be chaptered. d. An FC Form 2108, dated 3 August 1983, which shows the applicant's immediate commander notified the transition point and the applicant of his recommendation to deny the applicant's award of the Army Good Conduct Medal. e. Orders 148-92, issued by 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky on 3 August 1983, which amended Orders 105-116, issued on 1 June 1983, by changing the applicant's release from active duty date to 5 August 1983. These orders note that the applicant was being separated under the provisions of Army Regulation 635-200, chapter 13. f. A letter from the U.S. Army Central Personnel Security Clearance Facility, dated 16 September 1983, subject: Intent to Deny/Revoke Security Clearance, with acknowledge letter from the applicant. This letter informed the applicant of the command's intent to deny/revoke his security clearance and provided him an opportunity to explain and/or refute the information. It stated the following factors in his investigative dossier: On 17 May 1983, results of a urinalysis test that was administered to you on 22 April 1983 was returned positive. This action resulting in a Letter of Reprimand, dated 7 June 1983, your being barred to reenlistment, dated 19 July 1983, and implementation of proceedings for unsatisfactory performance under provisions of chapter 13, AR [Army Regulation] 635-200 [Personnel Separations – Enlisted Personnel], such proceedings leading to your relief from active duty effective 10 August 1983. g. On 20 March 1986, the applicant acknowledged he had been informed and elected his intent to submit a statement within 60 days for consideration before final adjudication. However, there is no statement available for review. h. Additionally, he provides several personnel documents, i.e., a certificate of promotion and several certificates of achievements and appreciation. 5. The applicant provides the "Member 1" copy of his DD Form 214, which does not show the type of separation, character of service, separation authority, or the narrative reason for his separation. However, it does indicate he was separated on 5 August 1983 and was transferred to the U.S. Army Reserve Control Group (Annual Training), in the rank/grade of sergeant (SGT)/E-5, following his completion of 2 years, 11 months, and 25 days of net active service. 6. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge processing within that board's 15-year statute of limitations. 7. The applicant provides an undated letter he received from the Office of the DCSPER, Headquarters, Department of the Army, subject: Correction of Military Records, Positive Urinalysis Tests during the Period 27 April 1982 through 31 October 1983. This letter reads: a. In September 1983, the Department of the Army became concerned that selected urinalysis test results from the Fort Meade drug testing laboratory were not meeting legal and scientific standards for use in disciplinary and administrative actions. On 24 October 1983, The Surgeon General of the Army directed that a panel of civilian and military chemists and lawyers review the operations and procedures of all Army and Air Force drug testing laboratories. As part of this inquiry, the panel was charged to review a representative number of previously reported positive urinalysis test results from each laboratory to determine if these results were scientifically and legally supportable. b. The panel rendered its report on 12 December 1983. The report 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 also found that a percentage of previously reported positive urinalysis results were not scientifically or legally supportable for use in disciplinary or administrative actions. Based on the panel's findings that a number of previously reported positive urinalysis test results were not scientifically or legally supportable, a team of chemists and attorneys have reviewed all available records of positive urinalysis tests reported from 27 April 1982 through 31 October 1983 by each Army drug testing laboratory. c. The Air Force also conducted a review of positive urinalysis tests performed for the Army at its drug testing laboratory during this time period. The review of your positive urinalysis tests reveals that it did not meet all scientific or legal requirements for use in disciplinary or administrative actions (emphasis added). If you believe that any action taken against you was based upon this positive urinalysis test, you may petition the ABCMR to seek a correction of any error or injustice that you believe may have occurred. REFERENCES: 1. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. a. 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. b. Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 2. 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 administrative actions. 3. Subsequently, the 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. As part of this review, the team evaluated the Fort Meade Medical Laboratory's review of detections of marijuana in urinalysis testing samples. It reviewed 503 cases and found all (100%) were determined to be deficient in either the scientific test procedures or the supporting chain of custody documents use, or both. Consequently, all urine specimen contained illegal drugs would not be legally and/or scientifically supportable. 4. 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. Two notification letters were prepared in accordance with applicable privacy act standards. One informed the recipient that the urinalysis had met the standards set by the Blue Ribbon Panel and was therefore supportable for use in disciplinary or administrative actions. The second advised the recipient that the urinalysis had failed to meet the established standards and was therefore unsupportable for use in disciplinary or administrative actions. DISCUSSION: 1. The applicant's request for an upgrade of his under honorable conditions (general) discharge was carefully considered. 2. The applicant's records were not located; however, based on the records and evidence that he submitted, it appears he provided a urine sample for testing during a urinalysis test on 22 April 1983, and that sample was found to be positive for marijuana use. 3. Subsequently, he was separated under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance due to unfitness for duty based upon positive indications of marijuana use on urinalysis testing. Discharges under this provision are characterized as honorable or under honorable conditions (general). Therefore, based on his admission and the request for an upgrade, it is logical to conclude his characterization of service was under honorable conditions (general). 4. He later received a letter from the Office of the DCSPER, Headquarters, Department of the Army, indicating the Department of the Army had become concerned that selected urinalysis test results from the Fort Meade drug testing laboratory were not meeting legal and scientific standards for use in disciplinary or administrative actions. 5. The evidence shows the Air Force also conducted a review of positive urinalysis tests performed for the Army at its drug testing laboratory during this time period. The review of the applicant's positive urinalysis test revealed that it did not meet all scientific and legal requirements for use in disciplinary or administrative actions. 6. The applicant was promoted to SGT with only about 2 years and 8 months of service, had positive job performance statements from his platoon sergeants and fellow Soldiers, and there is no apparent sign of nonjudicial punishment for the positive urinalysis test (almost four months prior to his discharge). It is reasonable to conclude that the primary reason for his separation was the positive urinalysis test that was deemed to not meet the legal requirements for use in disciplinary or administrative actions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017391 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017391 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2