IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100022523 


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:

* his Article 15, dated 29 April 2010, be set aside and his rank/grade be restored to staff sergeant (SSG)/E-6
* payment of active duty pay lost as a result of his premature release from active duty due to the Article 15

2.  The applicant states in accordance with Army Regulation 600-85 (Army Substance Abuse Program (ASAP)), if a Soldier volunteers for treatment to seek help (for drug or alcohol abuse), he or she should not receive an Article 15 or be reduced in rank nor should he or she be removed from active duty and/or the treatment program.  He adds that he has endured a very unsupportive chain of command.  His commander did not look into his case or consider explaining the "limited use policy" as prescribed by the governing regulation.  He was not counseled on the policy and he was not given the option to explain his actions that led to his positive urinalysis for cocaine.  He was enrolled in the ASAP before the company urinalysis was initiated.  As a result of the Article 15, he was reduced in rank and he was removed from active duty without any counseling on his progress in the ASAP and sent home to a troop program unit (TPU) of the U.S. Army Reserve (USAR).  Additionally, there were several unit members who tested positive and were demoted and taken off active duty.  However, he was the only one who volunteered into the ASAP; yet, he was treated like the others. 

3.  The applicant provides:

* a Standard Form (SF) 600 (Health Record - Chronological Record of Medical Care), dated 2 March 2010
* an SF 600 (Health Record - Confidential Information), dated 9 March 2010
* a DA Form 8002 (Summary of Outpatient Rehabilitation Efforts), from
9 March to 8 April 2010
* a DA Form 4465 (Patient Intake/Screening Record), 
* a printout of his appointments from 11 May to 10 August 2010
* an Alcohol and other Drug Abuse Prevention and Training (ADAPT) Appointment Slip
* DA Form 4856 (Developmental Counseling Form), dated 30 March 2010
* DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ)), dated 29 April 2010
* his Article 15 appeal memorandum
* a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 28 July 2010
* his complaint memorandum, dated 18 May 2010
* email exchange with a military attorney
* a command memorandum, subject:  Request for Early REFRAD [release from active duty], dated 6 May 2010
* Orders 146-0283, dated 26 May 2010, with amendments, releasing him from active duty
* Orders 10-207-00005, dated 26 July 2010, promoting him to sergeant first class (SFC)/E-7 and Orders 10-229-00001, dated 17 August 2010, revoking his promotion orders
* a Fort Bragg [NC] Group of Alcoholics Anonymous meeting agenda and sign in sheet from 19-27 April 2010
* Extract of Army Regulation 600-85

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant's records show he enlisted in the USAR on 27 August 2001 and he held military occupational specialty 88M (Motor Transport Operator).  He was assigned to the 991st Transportation Company, Camp Atterbury, IN.

2.  His records also show he served in Kuwait/Iraq from April 2003 to April 2004 and September 2008 to July 2009.  He was promoted to sergeant (SGT)/E-5 on 5 December 2003 and to SSG/E-6 on 15 August 2005.  Additionally, at the time of his Article 15, his name was on the SFC/E-7 promotion list.

3.  His records further shows he was awarded the Army Commendation Medal (2nd Award), Army Achievement Medal (3rd Award), Army Good Conduct Medal (2nd Award), Army Reserve Components Achievement Medal, National Defense Service Medal, Global War on Terrorism Service and Expeditionary Medals, Iraq Campaign Medal with two service stars, NCO (Noncommissioned Officer) Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon (3rd Award), Armed Forces Reserve Medal with "M" Device and 10-Year Device - Bronze, and the Driver and Mechanic Badge with Driver - "W" Bar [for wheeled vehicle] (2nd Award). 

4.  On 1 October 2009, he was ordered to active duty for contingency operations for active duty operational support (CO-ADOS) for 365 days in support of the Operation Warrior Trainer (OWT) program.  He was attached to the 1st Battalion, 311th Infantry Regiment, 189th Infantry Brigade, USAR Element, Fort Bragg.

5.  OWT is a First U.S. Army initiative to retain selected Army National Guard and Army Reserve NCOs and officers with recent combat experience to serve as Observer Controller/Trainers (OC/Ts), OPFOR [Opposition Forces], and COBs [CONUS (continental United States) Operating Bases).  The primary mission is training of deploying USAR, ARNG, Navy, and Air Force units for Operations Iraqi/Enduring Freedom and Kosovo deployments.  Soldiers volunteer for a 365-day unaccompanied CO-ADOS tour.

6.  He submitted the following documents:

	a.  An SF 600, dated 2 March 2010, that shows he complained of depression. He was seen at a Womack Army Medical Center, Fort Bragg clinic for an adjustment disorder.  He reported walking into the Department of Behavioral Health at the suggestion of his medical provider and discussed enrollment into ASAP for drinking.  This medical document also states "Referral to ASAP [is] noted in AHLTA [Armed Forces Health Longitudinal Technology Application]."  AHLTA is the military's electronic health record; it is an enterprise-wide medical and dental information management system that provides secure online access to Military Health System beneficiary records.

	b.  An SF 600, dated 9 March 2010, that shows on this date at the Fort Bragg ASAP, his counselor presented all initial screening documents to include his rights, privacy, and confidentiality.  He understood that treatment in the ASAP was voluntary (except in certain cases) and he agreed to participate in his own plan of treatment.  He further acknowledged having been counseled regarding programs and guidelines for patients referred to the ASAP.

7.  On 10 March 2010, he participated in a unit urinalysis and his urine sample tested positive for cocaine.

8.  He also submitted the following documents:

	a.  A DA Form 8002 that shows he was screened on 9 March 2010.

	b.  A DA Form 4465 that shows he had been diagnosed with alcohol dependence and self-referred for enrollment into ASAP.  His program consisted of 15 weeks of weekly group meetings.  He was also scheduled for a 16-hour course of instruction into an ADAPT program.

9.  On 31 March 2010, he was counseled by his immediate commander regarding his positive urinalysis.  The commander provided corrective training and recommended a plan of action regarding this issue.  The applicant was informed that he would be referred to ASAP and he would be considered for disciplinary action.  He was also informed to attend all appointments the chain of command would schedule for him.  The applicant indicated he disagreed with the information listed on the counseling form.

10.  On 29 April 2010, at a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for wrongfully using cocaine on or about 10 March 2010.  His punishment consisted of a reduction to SGT/E-5.  The applicant elected to appeal his punishment.

11.  By memorandum addressed to his brigade commander, he requested to set aside the Article 15.  He contended that the drug test results should have been subject to the limited use policy and that the imposing officer violated Army Regulation 600-85 when he relied on the test results for the NJP.  Since the drug results were obtained after his self-referral to ASAP on 9 March 2010, the results could not be used except in limited circumstances (if the drug or alcohol abuse occurred after self-referral).  He self-referred on 9 March 2010 and the unit urinalysis test took place on 10 March 2010.  The chain of command did not prove his drug usage occurred in the night between self-referral and the next test; therefore, the exception applied.  Additionally, although he was enrolled for alcohol dependence, the regulation does not state that the primary diagnosis controls which type of test results are protected.

12.  On 6 May 2010, subsequent to a review by a military attorney for legal sufficiency, the brigade commander denied the applicant's appeal.

13.  Additionally, on 6 May 2010, by memorandum to the U.S. Army Human Resources Command, St. Louis, MO, the applicant's brigade commander requested the applicant's early REFRAD as he was no longer viable for utilization under the OWT program due to unfit behavior.

14.  On 26 May 2010, Headquarters, U.S. Army Garrison, Fort Bragg, published orders directing the applicant's REFRAD.

15.  On 2 June 2010, in an exchange of email, a military trial defense attorney informed the applicant that "I (the attorney) and most people around the legal assistance office believe you (the applicant) should fall under the limited use policy." 

16.  He was honorably released from active duty on 6 June 2010.  His DD Form 214 shows he completed 8 months and 6 days of net active service during this period. 

17.  On 26 July 2010, Headquarters, 81st Regional Support Command (RSC), Fort Jackson, SC, issued orders promoting him to SFC/E-7.  

18.  On 26 July 2010, he was reassigned to a TPU, the 846th Transportation Company, Salisbury, NC.

19.  On 17 August 2010, Headquarters, 81st RSC, Fort Jackson, issued orders revoking his promotion to SFC/E-7.

20.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM).  It states a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

21.  Army Regulation 27-10, paragraph 3-28, describes the setting side and restoration actions.  This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a "clear injustice."  Clear injustice means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

22.  Army Regulation 600-85 governs the ASAP.  It identifies Army policy on alcohol and other drug abuse and assigns responsibilities for implementing the program.  The regulation makes the following definitions:

	a.  Alcohol abuse is any irresponsible use of an alcoholic beverage which leads to misconduct, unacceptable social behavior, or impairment of a member's performance of duty, physical or behavioral health, financial responsibility, or personal relationships.

	b.  Drug abuse is the use or possession of controlled substances, or illegal drugs, or the nonmedical or improper use of other drugs that are packaged with a recommended safe dosage.

	c.  Enrollment is the formal action taken by an ASAP counselor, in consultation with the commander, to enter a Soldier into the ASAP.

	d.  Limited use is protection from the use of certain information, determined to be confidential by Federal regulation, to support disciplinary action under the UCMJ or administrative separation with a less than honorable discharge.

23.  Applicable paragraphs of Army Regulation 600-85:

	a.  Paragraph 1-1(c) states abuse of alcohol or the use of illicit drugs by both military and civilian personnel is inconsistent with Army Values, the Warrior Ethos, and the standards of performance, discipline, and readiness necessary to accomplish the Army’s mission.  Unit commanders must intervene early and refer all Soldiers suspected of being alcohol and/or drug abusers to the ASAP.  The unit commander should recommend enrollment based on the Soldier’s potential for continued military service in terms of professional skills, behavior, and potential for advancement.
	b.  Paragraph 4-1 states drug abuse is inconsistent with Army values and readiness.  The Army’s drug testing policy is dependent on an aggressive and thorough urinalysis program requiring the honest participation of all Soldiers selected for testing, observers, and UPLs (Unit Prevention Leaders).  It is imperative that those selected for testing provide a specimen in a controlled and secure environment.  Therefore, Soldiers will not avoid providing a urine specimen when ordered, dilute a urine specimen to reduce quantitative value of that specimen of the specimen, substitute any substance for their own urine, chemically alter, adulterate, or modify their own urine, or assist another Soldier in doing any of these actions.  Penalties for violations of these prohibitions include the full range of statutory and regulatory sanctions, both criminal (UCMJ) and administrative.

	c.  Paragraph 4-2 states Soldiers who test positive for illicit drugs for the first time will be evaluated for dependency, disciplined as appropriate, and processed for separation within 30 calendar days of the company commander receiving notification of the positive result from the ASAP.

24.  Army Regulation 600-85, chapter 7, provides for identification, referral, and evaluation. 

	a.  Paragraph 7-1 states the Army recognizes that substance abuse and dependency are preventable and treatable.  While self-identification (ID) is the preferred method of ID, commanders are also responsible for identifying Soldiers at risk and for referring them to the ASAP for evaluation by the counseling staff and ordering them into the recommended intervention and rehabilitation.

	b.  Paragraph 7-1(a) states Soldiers who abuse alcohol shall receive the education, counseling, and rehabilitation services indicated by the severity of the abuse.  Alcohol problems are effectively addressed in most cases through engaged leadership, immediate intervention, and discipline as appropriate, education, counseling and rehabilitation.  The primary function of the ASAP rehabilitation program is to return the abuser to full duty status with a positive, productive, and healthy lifestyle.  Soldiers diagnosed with alcohol abuse or dependencies are permitted one period of rehabilitation for an alcohol incident per career.

	c.  Paragraph 7-3 states voluntary (self) ID is the most desirable method of discovering alcohol or other drug abuse.  The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek 

rehabilitation.  The Soldier’s unit commander must become involved in the evaluation process.  Command policies will encourage Soldiers to volunteer for assistance and will avoid actions that would discourage these individuals from seeking help.  Normally Soldiers with an alcohol or other drug problem should seek help from their unit commander; however, they may initially request help from their installation ASAP, an MTF (Military Treatment Facility), a chaplain, or any officer or NCO in their chain of command.  If a Soldier initially seeks help from an activity or individual other than his or her unit commander, the individual contacted should immediately notify the Soldier’s unit commander and installation ADCO.   The limited use policy will apply when Soldiers seek help from any of the listed personnel or organizations.

	d.  Paragraph 7-10 states the ASAP counseling staff will conduct an initial interview with all eligible personnel who self-refer to the ASAP counseling center for assistance.  During the initial interview, the counselor will advise the Soldier of the unit commander’s role in the referral, evaluation and rehabilitation process, or other disposition, explain the limited use policy, and provide information about ASAP services.  If, after the initial interview, further services are warranted, the ASAP counselor will contact the unit commander and coordinate the Soldier’s formal referral using DA Form 8003 (ASAP Enrollment), which will be signed by the unit commander and be annotated as a self referral.  The commander will be a part of the rehabilitation program and, as a member of the rehabilitation team, will be directly involved in the decision of whether rehabilitation is required.

25.  Table 10–1 summarizes how a Soldier’s confirmed positive drug test results may be used.  This table serves as guidance only; the facts of each case will dictate the appropriate actions that a commander should pursue.  Commanders should consult with their servicing legal advisor prior to initiating adverse action against a Soldier after receiving a positive drug test result.  The table states that in the cases of random sample, unit sweep, or command policy, test results may be usable in disciplinary proceedings as well as basis for separation and characterization of service.

26.  Paragraph 10-4 states commanders may take the following actions against Soldiers who test positive for illegal drugs or for illicit use of legal drugs when a medical official determines the Soldier has no legitimate medical purpose for taking the drug: administrative actions (oral or written counseling/reprimand; suspension of access to classified information; or suspension of favorable personnel actions; separation or retention) or UCMJ action (NJP and court-martial).  Any legal or administrative actions should be based on the substance abuse-related incident that resulted in the referral to the ASAP; actions will NOT be based on the screening or enrollment determinations.

27.  Paragraph 10-11 (Limited Use Policy) states the objectives of the limited use policy are to facilitate the ID of Soldiers who abuse alcohol and other drugs by encouraging ID through self-referral to facilitate the rehabilitation of those abusers who demonstrate the potential for rehabilitation and retention.  When applied properly, the limited use policy does not conflict with the Army’s mission or standards of discipline.  It is not intended to protect a member who is attempting to avoid disciplinary or adverse administrative action.

28.  Paragraph 10-12(a) states unless waived under the circumstances listed in other paragraphs, the limited use policy prohibits the use by the Government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings.  Additionally, the policy limits the characterization of discharge to "honorable" if protected evidence is used.  Protected evidence under this policy is limited to:

	a.  Results of command-directed drug or alcohol testing that are inadmissible under the MRE (Military Rules of Evidence).  Commanders are encouraged to use drug or alcohol testing when there is a reasonable suspicion that a Soldier is using a controlled substance or has a blood alcohol level of .05 percent (%) or above while on duty.  This information will assist a commander in his determination of the need for counseling, rehabilitation, or medical treatment.  Competence for duty tests results may be used as a basis for administrative action to include separation, but shall not be used as a basis for an action under the UCMJ or be used to characterize a Soldier’s service.

	b.  Results of a drug or alcohol test collected solely as part of a safety mishap investigation undertaken for accident analysis and the development of countermeasures is further described in paragraph 4–5 (Purposes for conducting drug testing).

	c.  Information concerning drug or alcohol abuse or possession of drugs incidental to personal use, including the results of a drug or alcohol test, collected as a result of a Soldier’s emergency medical care solely for an actual or possible alcohol or other drug overdose.  To qualify for limited use protection, Soldiers must inform their unit commander of the facts and circumstances concerning the actual or possible overdose.  The commander must receive this information as soon after receipt of the emergency treatment as is reasonably possible.  

	d.  A Soldier’s self-referral to the ASAP.

	e.  Admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to the ASAP and provided by Soldiers as part of their initial entry into the ASAP.  This includes an enrolled Soldier’s admission to a physician or ASAP counselor concerning alcohol or other drug abuse incidental to personal use occurring prior to the initial date of referral to the ASAP.

	f.  Drug or alcohol test results, if the Soldier voluntarily submits to a Department of Defense (DOD) or Army rehabilitation program before the Soldier has received an order to submit for a lawful drug or alcohol test.  Voluntary submission includes Soldiers communicating to a member of their chain of command that they desire to be entered into a rehabilitation program.  This limited use protection will not apply to test results which indicate alcohol or other drug abuse occurring after the voluntary submission to the rehabilitation program. Examples:  The unit commander has ordered a urinalysis on Monday for all members of the unit (an inspection under MRE 313).  Before receiving an order (or having knowledge of a pending test) to appear for the urinalysis, a Soldier approaches the platoon sergeant, admits having used illegal drugs over the weekend, and indicates a desire to receive help.  Later that day, the Soldier is ordered to and provides a specimen for the urinalysis, which results in a positive report for cocaine use.  Those results are protected by the limited use policy unless there is some evidence that demonstrates the use reflected by the test occurred after the admission was made to the platoon sergeant.  Later that week, the commander orders another unit inspection for the following Monday.  The inspection is conducted properly under MRE 313, and the Soldier once again has a positive result for cocaine.  These test results, as interpreted by an Army Forensic Toxicology Drug Testing Laboratory (FTDTL) expert, indicate the Soldier had used cocaine after admitting use to the platoon sergeant.  This test result is not protected by the limited use policy.

	g.  The results of a drug or alcohol test administered solely as a required part of a DOD or Army rehabilitation or treatment program.

DISCUSSION AND CONCLUSIONS:

1.  The regulation defines "protected evidence" as follows: 

* Results of a command directed/competence or fitness for duty urine or alcohol test
* A rehabilitation test as part of the ASAP treatment plan
* Information about a Soldier’s prior drug or alcohol abuse or possession of drugs for personal use
* Any information collected as a result of a Soldier’s emergency medical care for an actual or possible alcohol or drug overdose about drug or alcohol abuse, possession of drugs for personal use, or drug tests
* Drug test results of a Soldier who self-refers, who is tested prior to the drug being eliminated from his body

2.  Army Regulation 600-85 sets forth the kinds of information that may be used against a Soldier in disciplinary action and separation once that Soldier has been enrolled in ASAP.  The policy underlying the program encourages Soldiers to self-report drug or alcohol problems and provides limited forms of immunity for drug use uncovered by admissions of the Soldier in the program or urinalysis tests that are either command directed or taken as part of ASAP treatment.  The limited use policy does not prevent disciplinary action or separation for drug use uncovered after a Soldier's enrollment through a random urinalysis, unit inspection, or as a result of probable cause search.  

3.  Every applicant before the ABCMR bears the burden of providing by a preponderance of evidence that his or her record is in error or contains an injustice.  Where a record is being challenged appears facially valid, the ABCMR may presume administrative regularity in the absence of evidence to the contrary.  The applicant in this case failed to provide evidence that his Article 15 for cocaine use relied on limited evidence use:

* He entered the ASAP on 9 March 2009
* Random urinalysis taken by him on 10 March 2009 tested positive for cocaine
* He wrongfully used cocaine and, by implication, such use occurred after his self-admission to the ASAP
* He, in both the Article 15 presentation and in this application, failed to provide proof that he did not use cocaine after his self-admission to the ASAP
* To invoke limited use policy protection, he needed to provide the ABCMR concrete proof he used cocaine before his self-admission to the ASAP

4.  The limited use policy does not apply to the following evidence:

* A positive test that results from law enforcement activities
* A positive urine rehabilitation test on a Soldier who is enrolled for alcohol abuse
* Information concerning drug or alcohol abuse or possession of drugs for personal use occurring "after" a Soldier’s self-referral
* 
A positive urine test on a Soldier conducted on a random inspection after the Soldier is enrolled in ASAP

5.  The evidence of record confirms the applicant, an NCO and leader of Soldiers, tested positive for cocaine.  The commander administering the Article 15 proceedings determined the applicant committed the offenses in question during an open Article 15 hearing after considering all the evidence submitted by him.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for an open Article 15 hearing.  He appealed the punishment but his appeal was denied by the proper authority.

6.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was provided a defense attorney, he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal his punishment through the proper channels.  The evidence submitted by the applicant is not sufficient to change the determination of guilt made by the commander.  Specifically, he presents nothing to show that he did not use cocaine after self-enrollment to the ASAP on 9 March 2009 but before the unit urinalysis testing specimen was taken on 10 March 2009.  

7.  Additionally, by regulation, he was not immune from separation.  His brigade commander requested the applicant's REFRAD as he was no longer viable for utilization due to unfit behavior.  Accordingly, he was honorably released from active duty to the control of the USAR.  There is neither an error nor an injustice. 

8.  In view of the foregoing evidence, he is not entitled to the requested relief.

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)                                         AR20100022523



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ABCMR Record of Proceedings (cont)                                         AR20100022523



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