BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130019269 


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 reconsideration of his earlier request for correction of his military records by:

	a.  removing the nonjudicial punishment (NJP) from his Army Military Human Resource Record (AMHRR);

	b.  restoring his rank to sergeant, pay grade E-5; and

	c.  paying him all back pay and allowances as a result of this correction.

2.  The applicant restates his original argument concerning the limited use policy adding the following comments:

	a.  Limited use does not require speech on the part of the person who overdosed.

	b.  All that is required by regulation is that he seek emergency medical care for an actual or possible drug or alcohol overdose.

	c.  Nothing requires the individual to ask for help with the alcohol problem, only that the patient reveal it.

	d.  During routine or emergency medical treatment, a physician or health care provider may note apparent alcohol or other drug abuse wherein the individual will be referred to Army Substance Abuse Program (ASAP) counseling center.
	e.  If a Soldier reveals as part of a routine medical screening his or her personal abuse of alcohol or other drugs, further evaluation will determine if referral to ASAP is appropriate.

	f.  The revelation of personal abuse, by itself, will not subject the individual to adverse administrative action.

	g.  Unless waived, limited use policy prohibits the use by the government of protected evidence against a Soldier in actions under the Uniform Code of Military Justice (UCMJ).

	h.  Protected evidence includes the results of command-directed drug or alcohol testing that is inadmissible.

	i.  Competence for duty test results shall not be used as a basis for an action under the UCMJ.

	j.  For information concerning drug or alcohol abuse incidental to personal use, including the results of a drug test, collected as a result of Soldiers emergency medical care solely for an actual or possible alcohol or other drug overdose to qualify for limited use, the Soldiers must inform their 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.

3.  The applicant provides copies of:

* Memorandum for Record, Intelligence and Sustainment Company, dated   3 June 2013
* DA Form 8003 (Army Substance Abuse Program (ASAP) Enrollment), dated 25 June 2013
* Memorandum, Secretary of Defense, Integrity of the Military Justice Process, dated 6 August 2013
* Memorandum for Record, U.S. Army Medical Department Activity-Korea, dated 7 August 2013
* Memorandum for Record, U.S. Army Medical Department Activity-Korea, dated 8 August 2013
* Record of Proceedings (ROP), AR20130012695, dated 17 September 2013
* Criminal Law Deskbook, Volume I, pages U-10 and U-11
* Army Regulation 600-85 (Army Substance Abuse Program), paragraph 10-3, use of Soldiers' confirmed positive drug test results

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130012695, on 17 September 2013.

2.  Except for the Memorandum for Record, dated 3 June 2013, all of the applicant's enclosures appear to be new evidence requiring consideration by the Board.

3.  The original ROP considered, in essence, the same argument as the applicant now puts forth in this case.

	a.  The ROP stated that the NJP and allied documents, dated 20 June 2013, showed the applicant had accepted 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, a forfeiture of $1,201.00 pay for 2 months (suspended), and 45 days of extra duty.  The imposing authority directed filing the NJP 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.

	b.  The ROP noted the applicant had admitted to drinking alcohol daily and that he drank heavier the night before he was seen in the emergency department where he was seeking help.  However, he was not seeking help for an alcohol abuse problem.  He was concerned about needing stitches for a laceration on his chin.  He requested to be tested because he thought someone might have put something in his drink that caused him to black out.  Based on the circumstances presented in the case there was no evidence showing the test results qualified for limited use.  Accordingly, the applicant's request was denied.

4.  The Memorandum for Record, dated 7 August 2013, as provided by the applicant, states the applicant:

	a.  presented to the emergency department for a gaping skin laceration on his chin;

	b.  reported he was drinking the prior evening and blacked out;

	c.  wanted the laceration closed;

	d.  had a strong odor of alcohol;
	e.  had reported to the physician that he drank alcohol everyday; and

	f.  did not request referral to ASAP for himself. 

5.  The 7 August 2013 memorandum for record further states the physician believed the applicant was a safety risk to himself and others and recommended him as an ASAP referral.

6.  The Memorandum for Record, dated 8 August 2013, as provided by the applicant, states that during the applicant's emergency department evaluation he reported to the physician that he thought someone may have put something in his alcoholic drink the night before which could have contributed to him passing out.  He requested to be tested to find out if this had happened.

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.

	a.  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.

	b.  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 contends that the NJP should be removed from his AMHRR, and his rank and back pay restored because the evidence used for the NJP was prohibited under the limited use policy.

2.  The available evidence shows the applicant accepted NJP for being found drunk while on duty.  His NJP included reduction to specialist (SPC)/E-4, a forfeiture of $1,201.00 pay for 2 months (suspended), and 45 days of extra duty.  The imposing authority directed filing the NJP in the performance folder of his AMHRR.  The applicant annotated the form stating he was not found drunk, but he went to the emergency room and asked for a toxicology test and stitches on his own.
3.  The available evidence clearly shows the applicant went to the emergency department for treatment of a laceration on his chin.  While there he expressed a concern that someone may have put something into his alcoholic drink the night before.  On the basis of the applicant's concern, he was tested.  Accordingly, these tests did not fall under the limited use policy because they were not collected solely for an actual or possible alcohol or other drug overdose to qualify for limited use.

4.  There is no available evidence showing the applicant admitted at any time while in the emergency department that he had a personal base problem with alcohol.  He only stated that he drank every day and had drunk heavier the night before.

5.  In view of the above, the applicant's request should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20130012695, dated 17 September 2013.




      _______ _  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)                                         AR20130019269



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ABCMR Record of Proceedings (cont)                                         AR20130019269



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