IN THE CASE OF:	   

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130012695 


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:

	a.  removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 20 December 2002, and all allied documents from his Army Military Human Resource Record (AMHRR);

	b.  restoration to the rank/grade of sergeant (SGT)/E-5; and

	c.  payment of all back pay and allowances.

2.  The applicant states:

	a.  The Article 15 and all allied documents should be removed from his AMHRR because he was improperly disciplined in violation of Army Regulation 600-85 (The Army Substance Abuse Program (ASAP)), paragraphs 7-3 (Voluntary (Self) Identification) and 10-12 (Definition of the Limited Use Policy).

	b.  On 15 April 2013, he woke up with a cut on his chin, but he did not remember how he got it because he had been drinking the night before.

	c.  During physical training (PT) he told a Soldier he fell off his bicycle because of his embarrassment for blacking out.

	d.  After PT he went to the emergency room to get stitches and try to find out why he blacked out.
	e.  At his request, the doctor did a full toxicology test and found that he not only overdosed on alcohol, but it was still in his blood.

	f.  Army Regulation 600-85 outlines the polices regarding voluntary (self) identification as the most desirable method of discovering alcohol or other drug abuse and the command's responsibility in encouraging Soldiers to volunteer for assistance and for avoiding actions that would discourage these individuals from seeking help.

	g.  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, a military treatment facility, a chaplain, or any officer or noncommissioned officer in their chain of command.

	h.  The Limited Use Policy applies when Soldiers seek help from any of these listed personnel or organizations.

3.  The applicant provides:

* his Standard Form 600 (Chronological Record of Medical Care), dated 15 April 2013
* his DA Form 2627
* a memorandum for record from his commander, dated 3 June 2013
* a memorandum from his defense counsel, dated 24 June 2013

CONSIDERATION OF EVIDENCE:

1.  After previous service in the U.S. Air Force and the Hawaii Army National Guard, the applicant enlisted in the Regular Army on 30 September 2008.  The highest grade he attained during this period of active duty service was SGT/E-5.

2.  The applicant submitted a Standard Form 600, dated 15 April 2013.

	a.  The primary care provider stated the applicant:

		(1)  reported to the emergency room for treatment as a result of a laceration to his chin that occurred the previous night;

		(2)  was concerned that someone may have given him something in his drink because he blacked out after drinking;

		(3)  had the odor of ethanol alcohol and was likely intoxicated;

		(4)  his blood alcohol level was 200 (per 1,000 or 0.20 percent) which is clinically intoxicated, but in someone who drinks daily, this may be his functioning level;

		(5)  his commander came to the emergency department and is handling legal and unit-based care; and

		(6)  his chain of command requested a legal blood alcohol test.  The results are not available to this Board.

	b.  The applicant highlighted entries noting:

		(1)  himself as a 40-year old male who reported he was drinking the previous night and blacked out;

		(2)  he was cooperative, polite, and participated in the examination;

		(3)  he reported he was drinking the night prior;

		(4)  he had a gaping wound that needed to be closed;

		(5)  he asked and the primary care provider agreed to do a baseline laboratory and screening examination; and

		(6)  he received more than 2 hours of critical care time.

3.  His records contain a Consultation Report on Contributor Material generated on 23 April 2013 which shows his toxicological report revealed his blood contained 140 milligrams per deciliter of ethanol (equal to a blood alcohol level of 0.14 percent) on 15 April 2013.

4.  The performance folder of his AMHRR contains and he submitted his DA Form 2627 and allied documents, dated 20 June 2013, which show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for being "found drunk while on duty hours."  His NJP included reduction to specialist (SPC)/E-4, forfeiture of $1,201.00 for 2 months (suspended), and 45 days of extra duty.  The imposing authority directed filing the DA Form 2627 in the performance folder of his AMHRR.  The applicant annotated the form stating he was not found drunk, but went to the emergency room and asked for a toxicology test and stitches on his own.

5.  In support of his application, he submitted a memorandum for record from his commander, dated 3 June 2013, subject:  Circumstances Surrounding (Applicant) Drunk on Duty 15 April 2013, which states:

	a.  The applicant attended PT at 0600 hours on 15 April 2013, then went to the emergency room at 0755 hours to get stitches for a wound he had on his chin during PT.  He told his noncommissioned officer it was a shaving wound.  At the emergency room he claimed it was from a blackout the night before.  His blood alcohol level was tested with drunkenness confirmed.

	b.  In the G-2 formation and the PT formation for Soldiers with physical limitations, Soldiers who were near him stated they did not smell alcohol and he did not appear to be drunk.  When she saw him at the emergency room he was not visibly drunk, did not smell of alcohol, confirmed no indicators of drunkenness, could walk straight, was coherent and respectful, and his speech was not slurred.

6.  In support of his application, he also submitted a memorandum from his defense counsel, dated 24 June 2013, subject:  Article 15 Appeal, wherein he highlighted statements noting:

	a.  "The Article 15 proceedings were not conducted in accordance with law and regulation."

	b.  According to Army Regulation 600-85, paragraph 7-8a(1), "The revelation of personal abuse, by itself, will not subject the individual to adverse administrative action.  Urinalysis which may follow such disclosure will be covered under the Limited Use Policy."

	c.  According to Army Regulation 600-85, paragraph 10-12a, "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 proceeding [sic]."

	d.  "The toxicology report made against [Applicant] is a [sic] protected evidence under the Limited Use Policy…because [Applicant] voluntarily indicated that he 'black[ed] [out] the night before.'"

	e.  "No other indications of drunkenness – please see the company commander's memorandum found in the packet."

	f.  "[Applicant] is being punished for self-referring his overdose of alcohol, while he was asking for professional help in treating his abuse of alcohol."

	g.  "Such a violation of Limited Use Policy and punishing [Applicant] directly undermines the purpose of this policy."

	h.  "The Army wants Soldiers to self-report their alcohol abuse."

	i.  "[The applicant] sought medical assistance.  His chain of command now punished him for seeking medical assistance – using only evidence derived from that medical visit."

7.  Army Regulation 600-85 prescribes the policies and procedures pertaining to the Limited Use Policy which prohibits the use of protected evidence by the government against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings.

	a.  Paragraph 7-8a states:

		(1)  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 513 (Medical Record – Consultation Sheet).  If the patient is a Soldier, the physician will immediately notify the Soldier's unit commander of the referral.

		(2)  If a Soldier reveals his or her personal abuse of alcohol or other drugs as part of a routine medical screening with a physician or other health care provider, the health care provider will evaluate further with possible ASAP referral for in-depth evaluation and rehabilitation.  The revelation of personal abuse, by itself, will not subject the individual to adverse administrative action.  Urinalysis which may follow such disclosure will be covered under the Limited Use Policy.

		(3)  The health care provider will provide information about the Soldier's alleged alcohol or other drug use immediately to the commander should it appear that any of the following conditions exist:

		(a)  the abuse by the Soldier is current and

		(b)  impaired judgment is evident.

	b.  Paragraph 10-12a states that unless waived under the circumstances listed in paragraph 10-13d of this regulation, Limited Use Policy prohibits the use of protected evidence by the government 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.

	c.  Paragraph 10-12a also states protected evidence under this policy is limited to 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 commanders of the facts and circumstances concerning the actual or possible overdose.  The commanders must receive this information as soon after receipt of the emergency treatment as is reasonably possible.

8.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-7 contains guidance on who may impose NJP and states, in part, that any commander is authorized to exercise the disciplinary powers conferred by Article 15.  The term "imposing commander" refers to the commander or other officer who actually imposes the NJP.

9.  Army Regulation 27-10, paragraph 3-8, contains guidance on persons on whom NJP may be imposed.  It states that NJP may be imposed on military personnel of a commander's command unless such authority is limited or withheld by superior competent authority.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for removal of his Article 15, dated 20 June 2013, from his AMHRR; restoration of his former rank to SGT/E-5; and payment of any back pay and allowances were carefully considered and found to be without merit.

2.  The evidence of record shows the applicant received NJP under the UCMJ for being found drunk during duty hours after receiving treatment in the emergency room for a chin laceration.

3.  The evidence also shows, and he states, he drove himself to the emergency department after PT because he had a laceration on his chin that was oozing blood.  The treating physician noted the applicant smelled of alcohol and was likely intoxicated; therefore, he contacted the applicant's command.

4.  Although the applicant reported that he drank daily and drank heavier the night before he was seen in the emergency department, the evidence does not indicate that he reported to the emergency department seeking help for his drinking.  He states he needed stitches in his chin and was unable to explain what happened as a result of blacking out.  He requested to be tested to determine if he blacked out because someone put something in his drink.  Testing determined that he had a blood alcohol level of .20 percent and the subsequent command-directed test revealed a 0.14 percent blood alcohol level.

5.  Army Regulation 600-85 clearly states the results of the alcohol test must have been collected as a result of a Soldier's emergency care solely for an actual or possible alcohol or other drug overdose to qualify for limited use.  There is no evidence of record and he did not submit any evidence that shows he sought treatment as a result of a possible alcohol overdose.

6.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20130012695



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ABCMR Record of Proceedings (cont)                                         AR20130012695



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