ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170019009 APPLICANT REQUESTS, THROUGH COUNSEL: reconsideration of the applicant's previous request: * Pay for 22 years of service * All benefits to include but not limited to BHA (i.e., variable housing allowance (BAH)), Health Care, etc. for 22 years * Pension benefits that would have begun in 1996-7 * Punitive damages for years of anger, stress and embarrassment based on his character of discharge from the service APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with 2 page addendum * Fee Agreement * Power of Attorney * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 149 dated 15 October 1984 * 29 March 1985 letter acknowledging receipt of DD Form 149 * 10 February 1986 letter updating applicant on status of his appeal * 15 March 1987 letter to applicant from the Veterans of Foreign Wars * 26 February 2009 letter from the director of the Army Board for Correction of Military Records (ABCMR) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC85-03031 on 11 February 1987. 2. Counsel states that applicant has been denied his rightful position and rank in the Army due to the Army’s knowing reliance on a legally and scientifically unsupportable positive urinalysis it used as the basis for adverse administrative or disciplinary actions. Applicant served honorably and was in his second re-enlistment period. He intended to complete 22 years and was due to be promoted at the time of his illegal discharge. The actions of the ABCMR on 11 February 1987 were nothing short of criminal. The Board then failed to notify applicant of the result for over 13 years and in that February 2009 notification could muster only an apology for the poor quality of the letter capturing the determination. To add to this absurdity, applicant was informed that he had one year to file an appeal to the denial and because he was late in doing so a request for reconsideration would not be entertained. The last comment in the letter told applicant, in effect, to sue. That is what they are going to do. Although applicant gave up when he received the February 2009 letter, the firm has encouraged him to proceed with his suit to give him back his dignity and self-worth. If the Army wishes to correct the injustices of the past 33 years, they will entertain a legitimate offer through the Secretary’s office. The Army owes applicant the cost of a lost lifetime of heartache and self-loathing. 3. A review of applicant’s service record shows the following: a. Applicant enlisted in the Regular Army on 30 March 1979 for a period of 3 years. He re-enlisted on 30 September 1981. He was promoted to sergeant on 23 August 1981. He was awarded the Good Conduct Medal on 29 March 1982. b. On 29 February 1984, applicant accepted punishment under Article 15 of the Uniform Code of Military Justice for wrongful use of marijuana between about 26 December 1983 and 6 January 1984. c. On 9 March 1984, the Clinical Director, Community Counseling Center provided applicant’s commander a letter regarding the rehabilitation activities of applicant. The letter stated: * [Applicant] was screened for enrollment in the Alcohol & Drug Abuse Prevention & Control Program (ADAPCP) based on a 6 January 1984 positive urinalysis * he had been enrolled in the program before 19 August 1983 for the same reason * he denied using illegal drugs and stated he wanted to be chaptered * he refused to involve himself in the rehabilitation services offered by command and is cleared for any administrative action deemed appropriate d. Command initiated elimination under the provisions of Army Regulation (AR) 635-200, Personnel Separations—Enlisted Personnel, Chapter 9, Alcohol or Other Drug Abuse Rehabilitation Failure. The separation authority approved applicant’s separation with a General Discharge. He was discharged on 10 December 1984 having served 5 years, 8 months, and 11 days with no lost time. e. About two months before the effective date of his discharge, applicant submitted a DD Form 149 to the ABCMR, dated 15 October 1984, with the assistance of an attorney from the U.S. Army Trial Defense Service. He requested removal of the Article 15, dated 29 February 1984, a return to active duty with restoration of his rank, time in grade for promotion eligibility, all back pay and allowances, and a complete expungement of all references to the positive urinalysis. The error or injustice supporting correction was that the urinalysis test had been determined to be faulty by a Headquarters, Department of the Army review. f. On 29 March 1985, the ABCMR acknowledged receipt of applicant’s DD Form 149 by letter addressed to applicant at the address reflected on his application. g. On 11 February 1987, the ABCMR considered applicant’s case and granted partial relief. The Board found the following: * Applicant submitted a positive urinalysis on 7 June 1983 * The 7 June 1983 positive resulted in a 19 August 1983 referral to ADAPCP * Applicant submitted a positive urinalysis on 6 January 1984 and received an Article 15 based solely on that result * A “Blue Ribbon” Panel of experts established to evaluate the Army’s drug testing program found that the testing procedures were adequate to identify drug abuse, that there was no significant evidence of false positives, and that some previously reported positive results were not scientifically or legally supportable for use in disciplinary of administrative actions * Based on the Blue Ribbon Panel’s findings, a team of military chemists and lawyers reviewed the available records of positive results reported from 27 April 1982 through 31 October 1983 * Applicant’s 7 June 1983 urinalysis result was examined and the review team determined it was either the test procedures or the chain of custody documents or both were deficient and its use would not be legally or scientifically supportable * The specimen submitted by applicant on 6 January 1984 was tested after the problem period identified by the Blue Ribbon Panel and all errors had been corrected and was presumed supportable * Continued reference to the unsupportable 7 June 1983 urinalysis would be prejudicial and all references to it should be deleted from applicant’s records * The Article 15 imposed solely on the basis of the supportable 6 January 1984 urinalysis should not be set aside * Applicant was properly referred to the ADAPCP and was declared a rehabilitation failure solely on the basis of a supportable urinalysis * The declaration and discharge were proper * The Board directed that all Army records related to this case be corrected to remove any and all references to the 7 June 1983 urinalysis h. On 4 March 1988, an officer at the agency providing administrative support to the ABCMR sent a letter to applicant at a new address. The letter states he is enclosing a copy of the 8 May 1987 letter forwarded to applicant at the time of the Board’s action, which was sent to applicant’s address at the time. He also enclosed a DD Form 293 (Application for Review of Discharge from the Armed Forces). i. On 26 February 2009, the ABCMR sent applicant a response to his letter of 7 February 2009 in which he indicated he had not received a response to his 1984 application. A copy of the 1984 case was included. 4. By regulation (AR 15-185), the ABCMR corrects military records; it is not a paymaster. If payment is accrued as a result of such correction, a copy of the Board proceedings would be forwarded to the Defense Finance and Accounting Service for an audit and possible payment or collection. 5. By regulation (AR 635-200), a discharge is based on alcohol or other drug abuse when the member is enrolled in the Alcohol & Drug Abuse Prevention & Control Program and the commander, in consultation with the rehabilitation team, determines further rehabilitative efforts are not practical rendering the member a rehabilitation failure. Members discharged under this section will be discharged with an honorable or under honorable conditions characterization of service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board concluded that the applicant failed to show any specific error or injustice which would warrant providing any of the sought after relief. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: Army Regulation 635-200, Personnel Separations—Enlisted Personnel, in effect at the time, sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. Chapter 9, “Alcohol or Other Drug Abuse Rehabilitation Failure” provides the authority and procedures for discharging enlisted personnel for alcohol or other drug abuse rehabilitation failure. Discharge is based on alcohol or other drug abuse when the member is enrolled in the Alcohol & Drug Abuse Prevention & Control Program and the commander, in consultation with the rehabilitation team, determines further rehabilitative efforts are not practical rendering the member a rehabilitation failure. Chapter 9-4 directs that members discharged under this section will be discharged with an honorable or under honorable conditions characterization of service. ABCMR Record of Proceedings (cont) AR20170019009 5 1