IN THE CASE OF:	  
		BOARD DATE:	  5 August 2008

		DOCKET NUMBER:  AR20080005375 


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 removal of a record of proceeding under Article 15, Uniform Code of Military Justice dated 30 August 2004; withdrawal of his separation for misconduct; approval of his request to retire for years of service; and an entry be made on his separation document (DD Form 214) that he served in Operation Enduring Freedom.

2.  The applicant states that he reported to the Behavior Health Department at Womack Army Medical Center as a self-referral after being absent without leave (AWOL), but left without being seen because his first sergeant (1SG) ordered him to leave so he couldn’t self-refer himself.  He was then given a command directed urinalysis and then returned to the hospital, where he was admitted and treated from 3 to 9 August 2004.

3.  He believes that the nonjudicial punishment (NJP) in question should be removed because it was based on the command-directed urinalysis which should not have been introduced into evidence.

4.  The applicant continues that Department of Defense Directive (DoDD) and Army Regulations prohibit the use of the command-directed urinalysis for UCMJ action or characterization of service.

5.  The applicant states that he was improperly extended beyond the expiration of his term of service (ETS) to allow him to be considered for separation due to misconduct, and he had 20 years and 21 days of service when he was separated.
6.  The applicant adds that a letter of reprimand (LOR) issued to him for a driving while intoxicated (DWI) charge, which was dismissed by a civilian judge; a positive urinalysis which resulted in a court-martial, which was later dismissed; and another NJP, which had been filed in the restricted portion of his official military personnel file (OMPF) were improperly admitted into evidence when he was being considered for separation due to misconduct.

7.  The applicant provides selected excerpts from his military records, extracts from a DoDD and an Army Regulation, and extracts from his Army Discharge Review Board (ADRB) case.  Included with the extracts from his military records are orders dated 30 December 2002 directing a temporary change of station for the applicant’s unit along with the annex to those orders which reflect the applicant’s name.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he enlisted in the Regular Army on 30 January 1986 and was awarded the military occupational specialties of food service and human resources.  

2.  On 10 July 1986, the applicant accepted NJP for using cocaine.

3.  On 19 August 1988 the applicant, then a specialist, was given a LOR for his arrest for suspicion of driving while impaired by the military police on 30 July 1988.  The applicant had refused to complete a lawfully requested chemical test for blood-alcohol content at the time of his arrest.  The applicant submitted a letter in support of his application from the Eastern District of North Carolina, Office of the Clerk, which shows that the charges filed against the applicant on 12 September 1988 for speeding to elude, DWI, failure to stop for blinking light and siren, and reckless driving, were dismissed.

4.  On 30 June 1997, the applicant tested positive for cocaine.  The applicant was tried for wrongful use of cocaine and was found guilty, contrary to his plea.  He was sentenced to a reduction from staff sergeant to private and a bad conduct discharge.  The convening authority approved the sentence but, on 18 April 2001, the finding of guilty and sentence of the court-martial were set aside by the U.S. Court of Appeals for the Armed Forces based on the military judge’s failure to give a curative instruction after trial counsel made an improper argument.  The convening authority determined that a rehearing was not practicable.

5.  On 20 March 2002, the applicant, then a staff sergeant, reenlisted for an indefinite term of service.
6.  On 17 March 2004, the applicant accepted NJP for being AWOL from 6 to 11 February 2004.

7.  The applicant was seen from 3 to 9 August 2004 at the Department of Behavioral Health, Fort Bragg, as an inpatient.  He was diagnosed with major depressive disorder, cocaine dependence in sustained remission, alcohol dependence in early remission, and chronic lower back pain.

8.  On 30 August 2004, the applicant accepted NJP for being AWOL from 31 July to 3 August 2004, and for using cocaine between 30 July to 3 August 2004.

9.  On 3 July 2005, the applicant was notified by his commander of his intent to recommend his discharge for a pattern of misconduct.  That was based on the applicant’s use of cocaine between 31 July to 3 August 2004; his AWOL from
31 July to 3 August 2004; his AWOL from 6 to 11 February 2004; and operating a motor vehicle while impaired on 1 July 2002.

10.  On 13 July 2005, the applicant requested withdrawal of separation action for misconduct and that he be allowed to retire for years of service.

11.  On 29 September 2005, the applicant submitted a memorandum in which he waived his presence at the board scheduled to determine whether he should be separated for a pattern of misconduct.  In that memorandum he added “I believe the matters submitted include improperly obtained evidence (to wit an Article 15) and limited use evidence.  However, I recognize the Commanding General has determined the Article 15 to be properly obtained and the Government will not submit that either urinalysis is inadmissible as limited use.”

12.  The commander’s request to separate the applicant for a pattern of misconduct was approved by the Human Resources Command, Alexandria, Virginia, on 15 February 2006.  Accordingly, the applicant was discharged under other than honorable conditions on 27 February 2006 for a pattern of misconduct.

13.  On 18 January 2008, the ADRB upgraded the applicant’s discharge to honorable based on the Government introducing the results of a command- directed urinalysis into the discharge process.

14.  Army Regulation 600-85 prescribes policies and procedures for the operation and evaluation of the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  It discusses, among other subjects, the rehabilitation program, and limits the use of certain evidence obtained from individuals under the exemption policy.  For individuals enrolled in the ADAPCP, 
the exemption policy provides immunity from disciplinary action and covers admissions of drug use/possession for personal use, or alcohol abuse occurring prior to the time of initial ADAPCP interview, which is revealed to a physician or an ADAPCP counselor or is revealed by a positive urinalysis administered during any phase of the rehabilitation program.

15.  Army Regulation 600-85 provides that the characterization of service may be based upon the overall quality of the member's service, in which case either a general or an honorable discharge may be awarded.  It stipulates however that in any case in which the Government initially introduces into the final discharge process limited use evidence as defined by Army Regulation 600-85, an honorable discharge is mandated.

16.  DoDD 1010.1, paragraph 3.4.1.3, states that “results of a command-directed urinalysis test may be used as a basis for administrative action, including separation, but shall not be used as the basis for an action under the UCMJ…or be considered in the issue of characterization of service in a separation proceeding.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of a record of proceeding under Article 15, UCMJ dated 30 August 2004.  He believes that the NJP in question should be removed because it was based on the command directed urinalysis which should not have been introduced into evidence.

2.  On 30 August 2004, the applicant accepted NJP for being AWOL from 31 July to 3 August 2004, and for using cocaine between 30 July to 3 August 2004.

3.  While the ADRB believed that the applicant’s last positive urinalysis was covered under the limited use policy, the basis for that determination is not evident.  The applicant himself states that he was given a urinalysis on 3 August 2004 prior to self-referring.  As such, it would appear that the applicant’s command gave him a urinalysis based on probable cause, which would be admissible as evidence in NJP proceedings.  However, this is a moot point since he was also given the NJP for being AWOL, which certainly is grounds for NJP.

4.  The applicant also requests withdrawal of his separation for misconduct because DoDD and Army Regulations prohibit the use of the command-directed urinalysis for UCMJ action or characterization of service.  The applicant adds that he was improperly extended beyond his ETS to allow him to be considered for separation due to misconduct, and he had 20 years and 21 days of service when he was separated.
5.  As previously stated, there is no evidence to show that the applicant’s positive urinalysis was covered under the limited use policy.  This contention was made and dismissed, along with the contention that improperly obtained evidence was being used as a basis for his separation by the commanding general when he was being processed for a pattern of misconduct.  However, the action taken by the ADRB has already afforded him the benefit of the limited use policy by upgrading his discharge to honorable.  The DoDD does not prohibit the use of a protected urinalysis for initiation of separation action.  It merely states that such protected urinalysis results cannot be used in characterizing a Soldier’s service.  As for being improperly extended beyond his ETS, the applicant reenlisted for an indefinite term of service on 20 March 2002.  As such, this argument is not accepted.

6.  The applicant’s contention that an LOR issued to him for a DWI charge which was dismissed by a civilian judge was improperly admitted into evidence is not accepted.  The LOR was for his arrest for suspicion of driving while impaired by the military police on 30 July 1988.  The letter the applicant submits shows that civilian charges filed against the applicant on 12 September 1988 for speeding to elude, DWI, failure to stop for blinking light and siren, and reckless driving, were dismissed.  Therefore, an LOR based on a military police arrest on 30 July 1988 was properly admitted as evidence, as it would not be effected by the dismissal of charges filed by civilian police on 12 September 1988.

7.  As for the applicant’s request that an entry be made on his DD Form 214 that he served in Operation Enduring Freedom, while the applicant has provided documentation to show that his unit was ordered to be deployed in support of Operation Enduring Freedom, and that his name was on an annex to that deployment order, there is no evidence to show that he actually deployed.  He could have been determined non-deployable for a number of reasons and his name removed from the deployment order’s annex.  As such, there is insufficient evidence in which to grant this portion of his request.

8.  The applicant’s final request is that his application to retire for years of service be approved.  In this regard, the applicant’s request for retirement was properly disapproved since he was being considered for separation due to a pattern of misconduct.  It is noted that the applicant had been afforded leniency on numerous occasions throughout his military career, but had continued to commit acts of misconduct.  He had a history of cocaine use dating back to 10 July 1986, and a history of alcohol-related misconduct dating back to 30 July 1988.  When the applicant tested positive for cocaine on 30 June 1997, his command gave him another opportunity to complete his military career by not initiating administrative elimination action when the finding of guilty and sentence of the 
court-martial were set aside by the U.S. Court of Appeals for the Armed Forces.  When the applicant was AWOL from 6 to 11 February 2004, his command again was lenient by offering him NJP instead of initiating elimination action.  Therefore, it is evident that the applicant was provided every conceivable opportunity to complete his military career.  It was the applicant’s continued acts of misconduct that resulted in his loss of career and retirement, not solely actions taken by the Army.

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)                                         AR20080005375





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ABCMR Record of Proceedings (cont)                                         AR20080005375



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