IN THE CASE OF:	  

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140013967 


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 under honorable conditions (general) discharge be upgraded to honorable
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by amending item 18 (Remarks) to accurately show his continuous honorable active service dates
* in effect, change item 27 (Reentry (RE) Code) from RE-4 to RE-1

2.  The applicant states:

* he was demoted and discharged as a result of his unit's failure to abide by the Limited Use Policy outlined in Army Regulation 600-85 (The Army Substance Abuse Program (ASAP))
* he feels, therefore, an injustice has occurred

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 October 2007.  After completing initial training, he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade held was specialist/E-4.  Available records show he reenlisted for a term of 3 years on 13 January 2010.

2.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 that shows:

	a.  He was discharged under a general under honorable conditions on 16 May 2012.  He completed 4 years, 6 months, and 24 days of net active creditable service.

	b.  The authority shown is Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), paragraph 14-12c(2).

	c.  The narrative reason for separation is misconduct (drug abuse).  The separation code (SPD) is JKK, and the RE code is shown as 4.

	d.  Item 18 shows "continuous honorable active service:  20071023-20120215."  It also shows "immediate reenlistments this period - - 20100113-20120516."

	e.  He was awarded or authorized:

* Army Commendation Medal
* Army Achievement Medal (2nd Award)
* Army Good Conduct Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Expert Infantryman Badge
* Parachutist Badge
* Ranger Tab

3.  On 15 March 2013, the applicant applied to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge to honorable and a change in the narrative reason for separation.  On 31 October 2013, the ADRB informed him his request was denied.

4.  The applicant provides a self-authored statement.



	a.  He essentially states:

* he was discharged on 16 May 2012 and applied to the ADRB for an upgrade of his characterization of service as well as a change in reentry code; his request was denied
* he was stationed at Fort Carson, CO from February 2011 to 16 May 2012
* he used heroin in October and November 2011; he informed his chain of command he was using heroin and asked for help
* his platoon sergeant had him report to the ASAP; the next day the rear detachment battalion commander directed a command-wide 100 percent urinalysis
* he was told by his leadership, up to and including the rear detachment battalion commander, he was protected under the provisions of Army Regulation 600-85
* he participated in ASAP, but relapsed a few weeks later; he once again informed his chain of command
* following a reevaluation, it was determined he needed residential treatment; he remained in his unit under 24-hour watch pending the availability of a bed
* the next day another command-wide 100 percent urinalysis was conducted; he was brought to the residential treatment facility the following day after the urinalysis
* while his rear detachment battalion commander was disappointed the applicant had relapsed, he assured the applicant he was protected
* he stayed at the residential treatment facility for a month
* upon his release he met with the rear detachment battalion commander who told him he was lucky and that his use of heroin needed to stop; he said he would not relay the applicant's situation to the rear detachment brigade commander
* he had remained in the rear detachment as his unit deployed, serving as a team leader, and participating in ASAP's intensive outpatient program; he took urinalysis tests about twice a week and it helped him maintain his sobriety

	b.  He continued:

* he was then "ambushed" by his rear detachment battalion commander who informed him he had failed two urinalysis tests, taken a few months earlier
* the applicant contends these tests were taken the day after he had informed his chain of command of his substance abuse problem
* he states, although he had told his chain of command he used heroin, the two tests came back indicating on one test the presence of morphine (an opioid painkiller), and the other morphine and fentanyl (a synthetic opioid painkiller) 
* the rear detachment battalion commander checked with ASAP, who, the applicant asserts stated heroin metabolizes into morphine (confirmed according to Mayo Clinic Medical Laboratories website) and the fentanyl was likely mixed into the heroin (implying someone other than the applicant, and without his knowledge, had added this drug to the heroin he consumed)
* the applicant believed the information from ASAP resolved the matter, but later learned his rear detachment brigade commander was "livid"
* the rear detachment brigade commander initiated nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) as well as separation action
* he was stunned because he believed he was protected under the Limited Use Policy, as did his rear detachment battalion commander
* his rear detachment battalion commander told the applicant he (the rear detachment battalion commander) had been verbally counseled by the rear detachment brigade commander for trying to "sweep [the applicant's] mess under the rug"
* he was administered NJP, reduced to private/E-1, and given 45 days forfeiture of pay and 45 days of extra duty; separation action was also initiated
* he met with legal counsel and was told, while he could request a court-martial, if found guilty his record would show a felony conviction; this meant he could also be deported (he had joined the Army after emigrating from Europe)
* he is a permanent resident in the United States with a wife and children; he did not want to risk deportation

	c.  He went on:

* he had joined the Army to show his patriotism for his adopted country
* he had earned an Expert Infantryman Badge, a Parachutist Badge, and a Ranger Tab
* all he had wanted was to be able to deploy and rise through the ranks, instead his addiction caused him to fail everyone he cared for
* additionally, for some reason, the Limited Use Policy was not enforced in his case
* while serving his extra duty punishment, he began using heroin again; this was because he felt the military was his life, and now his career was over
* he failed another urinalysis test and was sent to a rehabilitation treatment facility for a couple of weeks to undergo detoxification
* following treatment he returned to his unit and completed the remainder of his extra duty punishment; he maintained sobriety while awaiting his discharge
* he has been able to keep his sobriety after being discharged
* because his unit was redeploying between April and May 2012, he did not go through normal outprocessing; he felt everyone was busy and his situation was not anyone's focus
* he loved serving his adopted country and had lived by the Ranger Creed until he started using heroin
* he stayed within the guidelines of Army Regulation 600-85 and believed he was protected, but his rear detachment brigade commander did not seem to care
* he has tried to obtain substantiating evidence from the ASAP at Fort Carson, but his request was not acted upon because of restrictions under the Health Insurance Portability and Accountability Act (HIPAA)
* he was hoping the Board could investigate this matter and gain the evidence needed to support his contentions
* he misses the Army so much he took a contract position with a company providing security in the Green Zone of Baghdad, Iraq
* while the pay was good, he would rather serve in the military; he would willingly volunteer for service with the Army National Guard, U.S. Army Reserves, or the Regular Army
* he requests the Board's favorable consideration of his application

5.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

6.  Army Regulation 600-85 governs the implementation of the Army's substance abuse program (ASAP).  Chapter 10 (Legal and Administrative Procedures, and Media Relations) prescribes policy and procedures for legal and administrative actions involving drug and alcohol use by Soldiers.  It states, in pertinent part:

	a.  All attempts, by any means, to avoid providing a urinalysis specimen when selected or ordered is a direct violation of the Army's official urinalysis program.

	b.  Paragraph 10-11 (Limited Use Policy) states the objectives of this policy is to facilitate the identification of Soldiers who abuse alcohol and other drugs by encouraging self-referral.  It is intended to help with the rehabilitation of those Soldiers who show the potential to be retained.  It is not intended to protect a member who is attempting to avoid disciplinary or adverse administrative action.

	c.  Paragraph 10-12 (Definition of the Limited Use Policy) says, unless waived under the circumstances listed in paragraph 10-13 (Implementation of the Limited Use Policy), the 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.  Protected evidence is limited, and includes

* the results of a command-directed drug testing that is inadmissible under the military rules of evidence
* a Soldier's self-referral to ASAP
* drug test results taken after a Soldier voluntarily submits to an Army rehabilitation program

	d.  In paragraph 10-12a(6), an example is given:

* the unit commander has ordered a urinalysis on Monday for all members of the unit
* before receiving an order to appear for the urinalysis (or having knowledge of a pending test), the Soldier approaches the platoon sergeant, admits having used illegal drugs, and indicates a desire to receive help
* later that day, the Soldier is ordered to and provides a specimen for the urinalysis; the results are positive for an illegal drug
* these results are protected under Limited Use Policy

	e.  Paragraph 10-13 states, if a Soldier admits to drug abuse and volunteers for help, the Limited Use Policy becomes effective as of the time the Soldier asks for help.  Soldiers will receive an honorable discharge regardless of their overall performance of duty if the discharge is based on a proceeding where the government (which includes the unit or intermediate commanders up to the separation authority) introduces limited use evidence.

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

8.  Army Regulation 635-5, in effect at the time, prescribes policy and procedures for the completion of the DD Form 214.  It states, for enlisted Soldiers who have a prior enlistment period not covered by this DD Form 214, and were not issued a DD Form 214 for that previous enlistment, but who are now receiving anything other than an honorable characterization of service, enter "continuous honorable active service from (first day of service for the previous period of enlistment) until (date before the commencement of the current term of enlistment).

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes a list of the Regular Army RE codes:

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted
* RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification 

10.  Army Regulation 635-5-1 (Personnel Separations - SPD) defines the separation codes used on the DD Form 214.  The regulation shows the SPD code of JKK is used for involuntary discharges done under the provisions of Army Regulation 635-200, paragraph 14-12c(2).

11.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "JKK" has a corresponding RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  As to the applicant's requests to upgrade his characterization of service, he contends, in effect, he should receive an honorable discharge because his command failed to correctly apply the Limited Use Policy under the provisions of Army Regulation 600-85.  

	a.  The Limited Use Policy does state commanders will not use urinalysis test results that meet its criteria for either legal or administrative actions.  Where a qualifying urinalysis is used in an administrative action, the separation authority is required to provide an honorable characterization of service.
	b.  The applicant provides no corroborating evidence to support his contentions, however.  Although he asks the Board to obtain this evidence through an investigation of his case, doing so exceeds the mandate of the Board.  Army Regulation 15-185 clearly places the burden on the applicant for providing the evidence required to support his claims.

	c.  Even assuming it were confirmed his command used test results from a urinalysis taken after he had sought treatment for heroin, the evidence does not affirm these test results would have met the Limited Use Policy criteria.

* in his self-authored statement, he acknowledges that, while he told his chain of command he was using heroin, urinalysis test results showed morphine (likely metabolized from heroin) and fentanyl
* he asserts representatives from ASAP stated the presence of fentanyl probably meant it had been mixed in with the heroin the applicant consumed (emphasis added)
* in so stating he implies this mixing was done without his knowledge and that he did not use fentanyl separately from the heroin
* he offers no proof that effectively explains the presence of fentanyl in his urinalysis results 

	d.  There is no evidence, therefore, the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

	e.  Based upon the foregoing, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Accordingly, there is no basis upon which to grant the applicant an honorable discharge.

2.  Regarding the amending of the RE code from RE-4 to RE-1, the SPD/RE Code Cross Reference Table confirms the RE code currently shown on his DD Form 214 is correct, given the SPD code.  Additionally, the SPD code shown on his DD Form 214 is the appropriate code based upon the authority for his discharge.  As such, there is no basis upon which to grant relief.

3.  The applicant states the entry in item 18 of his DD Form 214 that reads "continuous honorable active service:  20071023-20120215" is not accurate and should be amended.  Army Regulation 635-5 requires this entry to reflect the first day of service for the previous period of enlistment until the date before the commencement of the current term of enlistment.  He reenlisted on 13 January 2010, not 15 February 2012, as this entry indicates.  It would therefore be appropriate to correct this entry to instead read "continuous honorable active service:  20071023-201200113."

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 all Department of the Army records of the individual concerned be corrected by:

* deleting the entry in item 18 of his DD Form 214 for the period ending 16 May 2012 which states "continuous honorable active service:  20071023-20120215"
* adding the entry in item 18 of his DD Form 214 for the period ending 16 May 2012 which states "continuous honorable active service:  20071023-20100113"

2.  The Board further determined that 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 amending his DD Form 214
for the period ending 16 May 2012 to show:

* character of service as honorable
* reentry code RE-1



      _______ _   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)                                         AR20140013967



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ABCMR Record of Proceedings (cont)                                         AR20140013967



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