IN THE CASE OF:	   

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20120022840


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 upgrade of his general discharge to an honorable discharge and change of the authority and narrative reason for separation.

2.  The applicant states the characterization of his service and narrative reason for separation are both unjust and improper.

3.  The applicant provides no additional documentary evidence in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the narrative reason of the applicant's discharge and upgrade of his general discharge to an honorable discharge.

2.  Counsel states the applicant was an accomplished Soldier who served meritoriously over the course of two enlistments.  He was selected as Battalion Soldier of the Month and Soldier of the Quarter, and recommended for promotion to sergeant (SGT)/E-5.  He received four awards of the Army Achievement Medal, a stellar evaluation by his unit commander for his Officer Candidate School (OCS) application, and he was encouraged to reenlist in the Army while serving in Iraq.


	a.  In Iraq, the applicant struggled with mental illness and he received improper punishment under Article 15, Uniform Code of Military Justice (UCMJ), for possession of Tramadol (a prescription pain killer) that resulted in his discharge.

		(1)  On 17 February 2008, the applicant suffered a seizure as a result of an overdose of Tramadol.  While undergoing emergency medical treatment, it was discovered that he possessed a quantity of Tramadol in his cargo pocket.

		(2)  The applicant was charged with violation of Article 112(a), UCMJ, for wrongful use, possession, etc., of a controlled substance.  However, Tramadol is a prescription medicine, not a controlled substance.

		(3)  Through the use of prohibited evidence and, despite the legal impossibility of any violation of Article 112(a), UCMJ, the applicant was found to have committed the charges.  Thus, the Article 15 was erroneous and cannot form the basis of the applicant's discharge.

	b.  His command failed to abide by the Army's "Limited Use Policy" and allowed protected evidence obtained during the applicant's emergency medical treatment for a suspected drug overdose to be used against him.  Counsel adds, "The type of evidence prohibited by the 'Limited Use Policy' includes, in pertinent part:  'Information concerning drug or alcohol abuse or possession of drugs incidental to personal use, including the results of a biochemical test, collected as a result of a Soldier's emergency medical care solely for an actual or possible alcohol or other drug overdose [counsel's emphasis]."  He adds, "All of the evidence concerning [the applicant's] possession of Tramadol was protected because it was collected as a result of [the applicant's] emergency medical care for the actual or possible overdose of Tramadol, that caused his seizure on February 17, 2008."  Counsel concludes that, as a result of this violation of policy, the issuance of an honorable discharge is required.

	c.  The applicant was not referred to the Army Substance Abuse Program (ASAP) for evaluation and treatment nor was he afforded this right.  In fact, the unit commander acknowledged there was no ASAP available in Iraq.

		(1)  On more than one occasion, while the applicant was deployed to Iraq, his commanders had reason to suspect that he had a substance abuse problem.  However, the applicant was not referred to ASAP.  Counsel adds, "His last unit commander outlined a plan of action on paper that mandated [the applicant] be escorted to the clinic 'at Camp Victory to be enrolled in the ASAP,' but that action never occurred."


		(2)  Only two days later, the applicant was permitted to reenlist in the Army for an additional 6 years.  This occurred despite signs that the applicant was self-medicating to alleviate stress, anxiety, depression, and other symptoms associated with the decline of his mental health while deployed.

	d.  Counsel refers to an 8 June 2009 Army Times newspaper article wherein the Commander, 3rd Infantry Division, indicated he and his staff "take twice as long now to review all substance abuse cases for extenuating circumstances, rejecting a 'standard punishment' for everyone because of the war."

	e.  Counsel states that, "When deciding issues such as those presented here, this Board has previously concluded that, among other things, a command's failure to make the required referral under ASAP warrants an upgrade to fully honorable."

	f.  He adds the applicant has been diagnosed as having post-traumatic stress disorder (PTSD) resulting from his deployment to Iraq.

	g.  In reviewing the applicant's request for upgrade and correction of his discharge, the Army Discharge Review Board (ADRB) committed errors that violated the applicant's right to due process.

		(1)  The board improperly concluded that prior ADRB decisions cited by the applicant were not relevant.  The ADRB dismissed the contention by stating, "the method in which another Soldier's case was handled is not relevant [counsel's emphasis] to the applicant's case."  He states that, while the cited cases are not binding, they are relevant.

		(2)  More importantly, the ADRB ignored its governing statute and impaneled an invalid board consisting of the wrong number of members.

		(a)  On 8 December 2011, a case report was issued showing that, by majority vote (i.e., one of the five board members dissented and recommended a change to the character of the applicant's service), the ADRB voted to deny the applicant's request.

		(b)  In response to a request for the names and votes of the panel members, the ADRB produced a Vote Sheet showing that the panel voted unanimously (5-0) against the applicant.  Moreover, the name of one of the panel members who was seated on the panel (as recorded by applicant's counsel based on the name tags worn on the panel members' uniforms at the hearing) 


was different than that on the Vote Sheet.  It included Colonel (COL) T----- in place of COL M---------.  However, at the hearing, COL T----- was not seated on the panel, but was at a table with the ADRB staff.  The ADRB impaneled an invalid board consisting of the wrong number of members (i.e., since
COL M--------- was seated on the panel, but his vote was not included) and then the board compounded its error by substituting a sixth officer (i.e., COL T-----) as a voting member.

	h.  He adds, "…the ADRB employed an erroneous standard of review, purporting to require evidence of arbitrary or capricious action before finding a discharge improper."  Moreover, the ADRB concluded that all requirements of law and regulation were met "without any analysis or reference to a shred of evidence in the record."

	i.  The applicant refers to a case where the ADRB and Army Board for Correction of Military Records (ABCMR) has recognized the "Limited Use Policy" and the requirement to issue an honorable discharge.

	j.  Counsel offers that the applicant is currently employed as a claims assistant at the Department of Veterans Affairs (VA) Regional Office in Chicago, IL, and he hopes to become a counselor for the VA (or in some other capacity) to help veterans.

3.  Counsel provides documents in support of the applicant's application that are further identified and described in a Table of Exhibits as follows:

* Exhibit A - DD Form 214 (Certificate of Release of Discharge from Active Duty)
* Exhibit B - ADRB Case Number AR20110012734 (Case Report)
* Exhibit C - ADRB Case Number AR20110012734 (Vote Sheet)
* Exhibit D - VA Notice of Decision
* Exhibit E - Affidavit of Brett H. P-----
* Exhibit F - Affidavit of Applicant
* Exhibit G - Affidavit of Andrea M--------
* Exhibit H - ABCMR Docket Number AR20050001894, 23 November 2005
* Exhibit I - ABCMR Docket Number AR20110005606, 11 October 2011
* Exhibit J - DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States)
* Exhibit K - Appendix (Exhibits 1 through 51)
* Exhibit L - Supplement to Appendix (Exhibits 52 through 58)


CONSIDERATION OF EVIDENCE:

1.  A DD Form 214 shows the applicant enlisted in the Regular Army (RA) on 
15 September 1999, was honorably released from active duty on
10 August 2001 to attend school, and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve obligation.  He completed 1 year, 10 months, and 26 days of net active service this period.

2.  The applicant again enlisted in the RA, in the rank/grade of specialist (SPC)/E-4 on 6 April 2006 for a period of 4 years.

3.  He was awarded military occupational specialty 15P (Aviation Operations Specialist).

4.  He was assigned overseas in support of Operation Iraqi Freedom (OIF) and served in Iraq from 6 May 2007 through 29 March 2008.  While serving in Iraq, he reenlisted in the RA on 19 October 2007 for a period of 6 years with a selective reenlistment bonus option.

5.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows that on 5 March 2008, the applicant accepted nonjudicial punishment (NJP) on
17 February 2008 for misconduct by violating a general order by possessing an unprescribed medicine (Tramadol Hydrochloride), in violation of Article 92, UCMJ.

	a.  The Continuation Sheet to the DA Form 2627 also shows misconduct on 17 February 2008 by wrongfully possessing some amount of Tramadol Hydrochloride, a controlled substance; in violation of Article 112a, UCMJ.  However, the charge was lined-thru and initialed by the commander, indicating that this charge of misconduct was deleted from the DA Form 2627.

	b.  The applicant was afforded the opportunity to consult with legal counsel.

	c.  His punishment was 45 days of extra duty and reduction to private first class (PFC)/E-3.  He did not appeal the NJP.

6.  On 10 March 2008, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, for commission of a serious offense.


	a.  The basis for the commander's proposed action was the applicant possessed unprescribed medicine on numerous occasions and he was found in possession of unprescribed Tramadol Hydrochloride on 17 February 2008.

	b.  The applicant was advised of his rights and the separation procedures involved.

	c.  The commander's notification shows the applicant received a mental status evaluation on 21 February 2008 and a medical examination on
23 February 2008.  It also contained the following enclosures:

		(1)  a DA Form 3822-R (Report of Mental Status Evaluation), dated
20 October 2007, that shows the examining physician noted the applicant reported having an anxiety disorder and need for prescription treatment.  His diagnoses included Generalized Anxiety Disorder (GAD) with Depressive Disorder Not Otherwise Specified (NOS) and Operational Stress.  He added, "The service member is highly intelligent, has good insight into his problems, and maintains a desirable/positive attitude, which suggests his prognosis for full recovery is favorable."

		(2)  a DA Form 3822-R, dated 21 February 2008, that shows the examining physician noted the applicant was known to the clinic as he had been seen in therapy since October 2007.  His diagnoses included Polysubstance Abuse and Occupational Problems; Personality Disorder NOS with Antisocial and Narcissistic Features; and Operational Stressors.  He added, "However, [the applicant] has had a history of self-medicating, which initially was thought to represent his attempts to medicate self for his GAD, but this pattern has persisted to the point that he has been noncompliant with therapy by taking medications such as Tramadol which have resulted in seizure."

7.  Following notification of the separation action, the applicant consulted with legal counsel and he was advised of the rights available to him.

	a.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him.

	b.  The applicant also acknowledged he understood that if he received a discharge under other than honorable conditions he may make application to the ADRB or ABCMR for upgrading his discharge.  However, an act of consideration by either board did not imply that his discharge would be upgraded.


	c.  He elected to consult with military counsel.

	d.  He waived personal appearance before an administrative separation board and elected to submit a conditional waiver for a general discharge.

	e.  He declined to submit statements in his own behalf.

	f.  The applicant and his counsel each placed their signature on the document on 10 March 2008.

8.  The immediate and intermediate commanders recommended approval of the applicant's separation action for misconduct based on commission of a serious offense with a general, under honorable conditions discharge.

9.  On 17 March 2008, the separation authority approved the applicant's conditional waiver of the administrative separation board.  He also approved the commander's recommendation for discharge of the applicant and directed the applicant be discharged for misconduct based on commission of a serious offense and that his service be characterized as under honorable conditions.

10.  The applicant's DD Form 214 shows he entered active duty this period on
6 April 2006 and he was discharged on 8 April 2008.

	a.  He completed 2 years and 3 days of net active service this period.

	b.  It also shows in:

* item 24 (Character of Service):  Under Honorable Conditions (General)
* item 25 (Separation Authority):  Army Regulation 635-200, Paragraph 14-12c
* item 26 (Separation Code):  JKQ
* item 27 (Reentry Code):  3
* item 28 (Narrative Reason for Separation):  Misconduct (Serious Offense)

	c.  Item 18 (Remarks) shows the applicant's immediate reenlistment this period from 6 April 2006 through 18 October 2007 and that he completed his first full term of service.  It does not show the period of his continuous honorable active service.


11.  On 5 December 2011, the applicant (represented by counsel) personally appeared before the ADRB.  In ADRB Case Number AR20110012734, the ADRB determined (by a 4-1 majority vote) that the character of service and (by a 5-0 unanimous vote) the narrative reason for the applicant's discharge were proper and equitable.  On 8 December 2011, the ADRB sent notification to the applicant's counsel that the request for upgrade and change of the applicant's discharge was denied.

12.  In support of his application, the applicant's counsel provides the following additional documentary evidence:

	a.  ADRB Vote Sheet for Case Number AR20110012734, that shows the ADRB board members voted (by a 5-0 unanimous vote) "No Change" to the character of service and (by a 5-0 unanimous vote) "No Change" to the narrative reason of the applicant's discharge.  The ADRB members are listed as 
Colonels H----, S------, B------, T-----, and Y----- (Presiding Officer).

	b.  VA Rating Decision, dated 18 October 2012, and VA cover letter, dated 
23 October 2012, that show (on appeal) a clear and unmistakable error was found in the evaluation of the applicant's PTSD and GAD.  Accordingly, the previous evaluation was increased to 70 percent disabling effective 16 July 2010.

	c.  Affidavit of Brett H. P----, applicant's counsel, dated 4 December 2012, that shows he also represented the applicant at the ADRB formal hearing.  He attests to the authenticity of specific exhibits provided in the application to this board as true and accurate copies of the identified documents.  He also describes the setting for the ADRB formal hearing and states the ADRB panel consisted of five officers (all wearing the rank of colonel) who were seated behind a partition.  The name tags on the panel members' uniforms (seated from counsel's left to right) were:  S------, M---------, Y-----, B------, and H----.  The ADRB panel faced the applicant, his counsel, and witnesses (who were seated to the panel's right) and ADRB staff members that included Lieutenant Colonel T----- (Chief, Secretary/Recorder) and COL T----- (who were seated to the panel's left).  He adds that COL T----- was not introduced and he appeared to serve in the role of an analyst or special staff of the ADRB.

   d.  Affidavit of the applicant, dated 16 November 2012, wherein he attests to the authenticity of specific exhibits provided in the application to this board as true and accurate copies of the identified documents.  He states, "At no time during my service in the Army was I ever sent to an 'ASAP' counseling center."  He also describes the setting for the ADRB formal hearing and provides information concerning the individuals who were present that is similar to that which his counsel presents.
	e.  Affidavit of Andrea M--------, dated 16 November 2012, wherein she states she is a social worker at the VA and she was involved in the applicant's case.  She attests to the authenticity of specific exhibits provided by the applicant in his application to this Board as true and accurate copies of the identified documents.  She also describes the setting for the ADRB formal hearing and provides information concerning the individuals who were present that is similar to that which applicant's counsel presents.

	f.  ABCMR Docket Number AR20050001894, dated 23 November 2005, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 14 for misconduct - commission of a serious offense.  That applicant's counsel argued that that individual "self-referred" to the Army's Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) (now ASAP) numerous times, once to his command, and several times to the unit chaplain; however, they failed to refer that applicant to ADAPCP.  He added that Army Regulation 635-200 "does not specifically provide for separation under the major misconduct chapter, using solely 'limited use' information."  The ABCMR granted that individual full relief and corrected the regulatory, administrative, and narrative reasons of his discharge.

	g.  ABCMR Docket Number AR20110005606, dated 11 October 2011, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 9, for alcohol or other drug abuse rehabilitation failure.  The ABCMR determined that applicant "self-referred" to ADAPCP and his defense counsel informed his commander of that fact.  The ABCMR granted the individual full relief and upgraded that applicant's discharge to fully honorable.

	h.  Applicant's application to the ADRB, including "Appendix of Exhibits in Support of Request for Review of Discharge."

		(1)  Counsel provided a summary of the applicant's military service that included evidence of multiple awards of the Army Achievement Medal, a recommendation for OCS, and his prior honorable service leading to his reenlistment in Iraq on 19 October 2007 for a period of 6 years.

		(2)  He noted, "As early as October 2007, in response to the manifestation of his debilitating illnesses, [applicant] started to self-medicate."   The applicant's commander referred him to the local mental health clinic.

		(3)  Counsel discussed the applicant's diagnoses of GAD and PTSD and treatment at the VA following his discharge.


		(4)  Counsel's argument to the ADRB was essentially the same as that he makes in his statement to this Board.  He concluded the character and narrative reason for the applicant's discharge were both unjust and improper.

		(a)  Exhibit 1 provides a Chronology of Pertinent Events and some exhibits provide evidence not previously discussed in this record of proceedings.

		(b)  Exhibits 2 through 14 offer evidence of the applicant's prior honorable service, expert marksmanship qualification on 7 October 2006, awards and achievements (including four awards of the Army Achievement Medal during the period 8 January 2001 through 30 June 2007), OCS recommendation in October 2007, eligibility for and reenlistment on 19 October 2007, and eligibility for promotion to staff sergeant (SSG)/E-6 effective 1 March 2008.

		(c)  Exhibits 15 through 22 offer evidence of his post-service medical evaluations and recommendations in support of his application from his civilian provider and VA staff (i.e., clinical psychologists, psychiatrists, and social workers).  They also show the original VA rating decision granting service-connection for GAD with an evaluation of 10 percent (effective 23 August 2010) and Social Security Administration decision granting supplemental Social Security income based on disability since 1 March 2008.

		(d)  Exhibit 23 offers evidence of applicant's argument to the ADRB.

		(e)  Exhibit 24 includes a DA Form 4856 (Developmental Counseling Form), DA Form 2823 (Sworn Statement), DA Form 3881 (Rights Warning Procedure/Waiver Certificate), and a Memorandum for Record (MFR), all dated
17 October 2007, that show the applicant was counseled for using another individual's prescription medication (Valium) that was not prescribed to him.  He acknowledged using the medication for his anxiety and that he was afraid to go to the mental health clinic because it would jeopardize his OCS packet.

		(f)  Exhibits 25 through 28 offer information about PTSD and substance abuse with particular focus on veterans of the Global War on Terrorism who served in Iraq and Afghanistan.

		(g)  Exhibit 30 includes a DA Form 4856, DA Form 3881, and three 
DA Forms 2823, all dated 18 February 2008, that show the applicant was counseled for using prescription medication (on 17 February 2008) that was not prescribed to him by a doctor.  In his sworn statement, the applicant invoked his right to an attorney.  In one of the sworn statements, Sergeant Major (SGM) 


William P. G----- stated that he responded to an event in the work place where it appeared the applicant was having a seizure.  After the seizure, he checked the applicant's pockets to pull out any medications so the emergency medical treatment (EMT) personnel would be aware of them.  He removed a box that contained capsules, informed EMT personnel, and placed the box on the litter between the applicant's legs.

		(h)  Exhibit 33 that shows in an MFR, dated 4 March 2008, Captain Scott J. B---------, Battalion Aeromedical Physician Assistant, indicated the applicant had taken a prescription medication (Tramadol, also known as Ultram) on 
17 February 2008.  He also indicated it is not a controlled substance under Drug Enforcement Administration (DEA) schedules.

		(i)  Exhibit 34 includes a DA Form 4856, dated 21 February 2008, that shows the commanding officer counseled the applicant on 19 February 2008 for having received a small envelope of 10 tablets that was labeled in Spanish and contained 50 milligrams of Codeine Phosphate.  The commander indicated he would be referring the applicant to ASAP.

		(j)  Exhibit 36 is a letter, dated 1 January 2011, requesting upgrade of the applicant's discharge that is signed by six of his relatives.

		(k)  Exhibits 38 and 39 include extracts of the Schedules for Controlled Substances from the Code of Federal Regulations (CFR) and U.S. Code.

* the CFR and USC do not list Tramadol
* the CFR, Schedule I, paragraph c (Opium derivative), lists Codeine Methylbromide and Codeine-N-Oxide
* the CFR, Schedule II, paragraph b (Substances), lists Codeine
* the USC, Schedule I, lists Codeine Methylbromide and Codeine-N-Oxide

		(l)  Exhibit 40 is a copy of ADRB Case Number AR20040104675, dated
10 January 2005, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The board noted the government had introduced evidence of misconduct from a prior period of honorable service.  The ADRB granted that applicant full relief by upgrading his discharge to fully honorable and changing his narrative reason for separation.


		(m)  Exhibit 41 is a copy of ADRB Case Number AR20080007787, undated, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 14, for commission of serious offenses.  The board determined the characterization of service was too harsh and inequitable.  Based on the length and quality of his service, including his combat service, the ADRB granted that applicant partial relief by upgrading his discharge to fully honorable.

		(n)  Exhibit 42 is an MFR, dated 13 June 2011, from CPT Jeremy D. 
H-------, the applicant's former company commander.  He stated he commanded Headquarters and Headquarters Company, 2nd Battalion, 3rd Aviation Regiment, General Support Aviation Brigade, from July 2006 to November 2007.  He summarizes the applicant's achievements, including his recommendation of the applicant for OCS.  He also discussed the incident that occurred on 17 October 2007 involving the applicant's use of a prescription medication that was not prescribed to him.  He referred the applicant for a mental health evaluation and would have referred him to ASAP; however, at the time, the program was not established or available at Camp Striker in Iraq.  He notes the applicant's service while under his command was honorable.

		(o)  Exhibit 43 is a copy of ADRB Case Number AR20050008228, dated
3 October 2005, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense (wrongful use of cocaine).  The board determined that applicant's characterization of service was inequitable.  Based on his quality of service, including his combat service in Kuwait and Iraq, the ADRB granted that applicant full relief by upgrading his discharge to fully honorable and changing the narrative reason for separation.

		(p)  Exhibit 44 is a copy of ADRB Case Number AR20040000968, dated 21 December 2004, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense (wrongful use of cocaine).  The board determined that applicant's characterization of service was inequitable.  Based on his length and quality of service, including treatment reports for readjustment issues and PTSD from the VA, the ADRB granted that applicant partial relief by upgrading his discharge to fully honorable.

		(q)  Exhibit 45 is a copy of ADRB Case Number AR20080010964, dated 14 August 2008, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The board determined that applicant's characterization of service was too harsh and inequitable.  Based on his length and quality of service, including his combat 
service in Iraq, the ADRB granted that applicant partial relief by upgrading his discharge to fully honorable.

		(r)  Exhibit 46 is a copy of ADRB Case Number AR20090019123, dated
9 December 2009, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense (absent without leave).  The board determined that applicant's characterization of service was too harsh and inequitable.  Based on his length and quality of service, including his combat service in Iraq, the ADRB granted that applicant partial relief by upgrading his discharge to fully honorable.

		(s)  Exhibit 47 is a copy of ADRB Case Number AR20040003951, dated
1 November 2004, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The board determined that applicant's characterization of service was inequitable.  Based on the VA's diagnosis of that applicant's PTSD (rated
100 percent retroactive to the date of his discharge), the ADRB granted that applicant partial relief by upgrading his discharge to fully honorable.

		(t)  Exhibit 48 is a copy of ADRB Case Number AR20080007185, undated, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of physical condition, not a disability.  The board determined that applicant's characterization of service was too harsh and inequitable.  Based on his combat service and documented evidence of mental illness prior to his deployment, the ADRB granted that applicant partial relief by upgrading his discharge to fully honorable.

		(u)  Exhibit 49 is a copy of ADRB Case Number AR20090007012, undated, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  The board determined the characterization of service was inequitable.  Based on his length and quality of service, including his combat service in Iraq, the ADRB granted the individual full relief by upgrading his discharge to fully honorable and changing the narrative reason for separation.

		(v)  Exhibit 50 is a copy of ADRB Case Number AR2004105226, dated
20 October 2004, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense (wrongful use of marijuana).  The board found that applicant approached his Unit Drug and Alcohol Coordinator to obtain information regarding a self-referral to the ADAPCP.  Thus, the results of the biochemical tests were 


protected based on the "Limited Use Policy" and the use of the information mandated award of a fully honorable discharge.  The ADRB granted that applicant full relief by upgrading his discharge to fully honorable.

   	(w)  Exhibit 51 is a copy of ADRB Case Number AR2004104457, dated
13 October 2004, that pertains to the discharge of another applicant under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense (wrongful use of cocaine and marijuana).  The board found the government introduced into the discharge process the results of a biochemical test administered solely as a required part of a rehabilitation treatment that is "limited use" information.  Thus, the use of the information mandated award of a fully honorable discharge.  The ADRB granted that applicant full relief by upgrading his discharge to fully honorable.

	i.  Exhibit L - Supplement to Appendix of Exhibits in Support of Request for Review of Discharge (includes Exhibits 52 through 58).

		(a)  Exhibits 52 and 53 are two photographs of the applicant (in Army uniform) accompanied by a woman.

		(b)  Exhibit 54 is a Report of VA Consensus Conference:  Practice Recommendations for Treatment of Veterans with Comorbid Substance Abuse and PTSD (October 2009).  It shows approximately one-third of veterans seeking treatment for substance abuse disorders also meet criteria for PTSD.

		(c)  Exhibit 55 is a copy of a Report of Medical History, dated 23 February 2008, that shows the applicant was treated for Convulsions of Unclear Entomology/Suspected Seizures, Polysubstance Abuse, Anxiety Disorder/
Depressive Symptoms, and Hypercholesterolemia.  The examining physician recommended that upon the applicant's return to the United States, he would need an EEG (Electroencephalogram), MRI (Magnetic Resonance Imaging), and consultation for full seizure work-up; Narcotics Anonymous group and psychiatric consultations for substance abuse; and psychiatric consultation for therapeutic lifestyle changes and (if he did not improve) drug therapy.

		(d)  Exhibits 56 and 57 are two newspaper articles (USA Today, dated
9 June 2009; and Army Times, dated 8 June 2009) that show General
Peter C--------, Vice Chief of Staff, Army, issued a message to commanders for them to do a better job of getting drug and alcohol offenders into treatment or separated from the Army.  He noted that only 70 percent of Soldiers who tested positive for illegal drugs had been referred to ASAP for treatment in the past
3 years.


		(e)  Exhibit 58 is a copy of a Social Security Administration letter to the applicant, dated 24 June 2011, that shows a fully favorable decision for a disability, along with disability insurance benefits since 1 March 2008.

13.  Army Regulation 600-85 (The ASAP), in effect at the time, prescribes policies and procedures needed to implement, operate, and evaluate the ASAP.  It provides comprehensive alcohol and drug abuse prevention and control policies, procedures, and responsibilities for Soldiers of all components, Army civilian employees, and other personnel eligible for ASAP services.

	a.  Chapter 3 (Identification, Referral, Screening, Evaluation, and the Rehabilitation Team), provides in:

		(1)  paragraph 3-5 that during routine or emergency medical treatment, a physician or health care provider may note apparent alcohol or other drug abuse. In such instances, the physician or health care provider will refer the individual to the ASAP counseling center using a Standard Form (SF) 513 (Medical Record - Consultation Sheet).  If the patient is a Soldier, the physician will immediately notify the Soldier's unit commander of the referral; and

		(2)  paragraph 3-7 outlines specific actions for commander's for referring Soldiers suspected of alcohol or drug abuse.  It states that when a Soldier is identified as a probable alcohol or other drug abuser, the unit commander or designated representative will:

		(a)  advise the Soldier of his/her rights under Article 15, UCMJ, using
DA Form 3881 (Rights Warning Procedure/Waiver Certificate);

		(b)  explain the provisions of the "Limited Use Policy";

		(c)  interview the Soldier and inform them of the evidence;

		(d)  give the Soldier the opportunity to provide additional evidence, including information on drug sources, if they desire (however, such disclosure is voluntary); and

		(e)  collect any illegal drugs or drug paraphernalia that the Soldier voluntarily relinquishes and turn them over to the local Provost Marshal.


	b.  Chapter 6 (Legal Aspects, "Limited Use Policy," and Confidentiality) provides in:

		(1)  paragraph 6-3 that the objectives of the "Limited Use Policy" are to facilitate the identification of Soldiers who abuse alcohol and other drugs by encouraging identification through self-referral and to facilitate the treatment and 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; and

		(2)  paragraph 6-4 that unless waived under authorized circumstances, 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.

		(a)  The policy limits the characterization of discharge to "honorable" if protected evidence is used.

		(b)  Protected evidence under this policy is limited to, in part, 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.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge, if such is merited by the Soldier's overall record.

	b.  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.

	c.  Chapter 5 provides authorization for separation for the convenience of the government.  Paragraph 5-3 provides that separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Separation under this paragraph is effective if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums.  The discharge or release of any enlisted member of the Army for the convenience of the government will be at the Secretary's discretion. 

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" for enlisted Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious misconduct).

16.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned Reentry Eligibility (RE) codes based on their service record or the reason for discharge.

	a.  The SPD/RE Code Cross Reference Table provides for the assignment of RE-3 for members separated with SPD code "JKQ."

	b.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received NJP under the UCMJ are disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of Army Regulation 635-200, chapters 9, 10, 13, 14, and 16.

17.  Army Regulation 635-5 (Personnel Separations - Separation Documents) states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty and is prepared for Soldiers upon release from active duty, discharge, retirement, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, separation approval authority documentation, separation orders, or any other document authorized for filing in the Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File (OMPF)).

	b.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It states for:

		(1)  item 18 use this block for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks.

		(a)  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter the statement "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)."

		(b )  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter the statement "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."

		(2)  item 24, the authorized entries include Honorable, Under Honorable Conditions (General), Under Other Than Honorable Conditions, Bad Conduct, Dishonorable, and Uncharacterized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend that the characterization of his service should be upgraded to fully honorable, and the authority and narrative reason for separation should be changed to Secretarial Authority.

2.  The evidence of record shows the applicant enlisted in the RA on 6 April 2006.

	a.  He deployed to Iraq on 6 May 2007.

	b.  On 17 October 2007, the applicant's commander referred him for a mental health evaluation based on his use of a prescription medication that was not prescribed to him.  Based on his evaluation, the psychologist indicated the applicant's prognosis for a full recovery was favorable.  At the time, the ASAP was not established or available at Camp Striker in Iraq.

	c.  On 19 October 2007, the company commander approved the applicant's reenlistment in the RA.

	d.  Given the foregoing, the evidence of record supports the fact that the applicant had honorable service from 6 April 2006 through 18 October 2007.

3.  On 17 February 2008, the applicant was treated by EMT personnel for an incident wherein it was discovered he had self-medicated with a prescription medication that had not been prescribed to him.

4.  Records show the applicant accepted NJP on 17 February 2008 for misconduct in violation of Article 92, UCMJ by possessing an unprescribed medicine.

	a.  The evidence of record also shows the charge entered on the Continuation Sheet of the DA Form 2627 of wrongfully possessing a controlled substance in violation of Article 112a, UCMJ, was deleted (i.e., lined-thru and initialed) by the commander.

	b.  Thus, the evidence of record does not support counsel's contention that the applicant received NJP for wrongful use/possession of a controlled substance (Article 112(a), UCMJ).

	c.  Therefore, the DA Form 2627 issued to the applicant on 5 March 2008 is accurate with respect to the specified misconduct and violation of the Article of UCMJ under which the NJP was imposed.

	d.  In addition, the applicant had the opportunity to consult with counsel and he did not appeal the Article 15 punishment.

5.  The evidence of record shows that during an emergency medical incident, a SGM in the applicant's chain of supervision/command discovered a box in the applicant's pocket that contained medicine.  As such, the SGM took appropriate action to ensure EMT personnel were made aware of this.  It was later learned that the medicine was unprescribed.

	a.  The evidence of record shows that under the "Limited Use Policy," protected evidence includes information concerning drug abuse or possession of drugs incidental to personal use collected as a result of a Soldier's emergency medical care solely for an actual or possible alcohol or other drug overdose.
	b.  Information concerning the applicant's drug use was collected as a result of rendering emergency medical care for a seizure.  The cause of the applicant's seizure is not stated by medical personnel in the available evidence.

6.  The evidence or record shows that 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.  Records show the applicant executed a sworn statement one day after the incident (i.e., on 18 February 2008) and he invoked his right to an attorney. Because the applicant did not inform his unit commander of the facts and circumstances concerning the actual or possible overdose, "Limited Use" protection does not apply.

7.  The applicant asserts an ASAP facility was not available in close geographic proximity to the applicant's unit in Iraq during the period under review.  The applicant's commander was aware of the applicant's use of unprescribed medication as early as 17 October 2007.  Nevertheless, there is no evidence that shows the applicant was referred to an ASAP facility in the theater of operations at any time during the period 17 October 2007 through 17 February 2008, nor was he evacuated to an area (e.g., Landstuhl, Germany) with an ASAP facility.

8.  On 10 March 2008, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense on 17 February 2008.

	a.  There is no evidence that the separation action was based on the incident that occurred on 19 February 2008 when the applicant received a small envelope of 10 tablets (Codeine Phosphate) in the mail (and the commander indicated that he would be referring the applicant to ASAP).  Thus, this incident is not germane to the separation action under review.

	b.  The applicant received counsel and waived personal appearance before an administrative separation board contingent upon a conditional waiver for a general discharge.

9.  On 8 April 2008, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (serious offense), with an under honorable (general) discharge.


10.  ADRB Case Number AR20110012734, dated 5 December 2011, provides a summary of how the board members voted in the applicant's case.  It shows the board determined the character of service and the narrative reason of the applicant's discharge were both proper and equitable.

	a.  The Vote Sheet provided to counsel by the ADRB offered a different representation of the ADRB case with respect to both the board's membership and vote tally.  The fact that one of the ADRB panel members (presented by the ADRB to be a voting member in the review of the applicant's case) was substituted with another officer (who was not presented as a voting member) calls into question the integrity of the board proceedings.

   b.  However, while the two vote tallies differ, they are not at odds with the board's determination that the applicant's discharge was proper and equitable. Thus, any appearance of impropriety was harmless.

11.  After careful consideration of the facts and circumstances of this case, and in view of all of the foregoing, the applicant's request has some merit.

	a.  On 17 October 2007, the applicant was counseled for using another individual's prescription medication.  There is no evidence the applicant was referred to ASAP for counseling and rehabilitation.

	b.  On 19 October 2007, the unit commander administered the oath of reenlistment to the applicant.

	c.  Thus, this personnel action by the commander affirmed that the applicant had honorable service from 6 April 2006 through 18 October 2007.  However, this honorable service is not recorded on the applicant’s DD Form 214.

	d.  Therefore, the period of service that is actually under review is from 
19 October 2007 through 8 April 2008, a period of 5 months and 20 days.

	e.  On 17 February 2008, the applicant received emergency medical treatment for a seizure following his use of medication that was not prescribed to him by a doctor.  There is no evidence the applicant was referred to ASAP for counseling and rehabilitation for this incident.

	f.  His discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct (serious offense) was authorized.  However, the failure of the chain of command to refer the applicant to ASAP for his drug problem, which was fully known to them as early as 17 October 2007, bears consideration on the determination of the applicant's character of service during the period beginning 19 October 2007.  Specifically, the chain of command failed in its duty to ensure the applicant received counseling for his drug problem and that he was also afforded an opportunity for his rehabilitation.

12.  In view of the foregoing, it would be appropriate at this time to correct the applicant's records by voiding his 8 April 2008 DD Form 214 and showing he was honorably discharged on 8 April 2008.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding the applicant's DD Form 214 for the period ending 8 April 2008 and issuing a new DD Form 214 by showing in item 24 the entry "Honorable."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the authority and narrative reason for separation.




      _______ _   _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)                                         AR20120022840



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ABCMR Record of Proceedings (cont)                                         AR20120022840



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