MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           7 March 2002   
	DOCKET NUMBER:   AR2001062295

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
                advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his application to correct his records by restoring him to pay grade E-6.

APPLICANT STATES:  In effect, his reduction in grade was improper and the evidence he submits supports this contention.  The applicant states, in effect, that he was unable to withstand the stress he was under so he started using (abusing) alcohol and cocaine to cope.  He states, “When he realized he had a problem he requested to be placed in the drug and alcohol rehabilitation (rehab) program.”  The applicant states that he omitted cocaine use, at the time he was filling out the original intake forms, because he was not aware of what the program was actually about.  He further states that his command harassed him by having him participate in urinalysis testing every time his unit was directed to be tested and that he was sent to other units for testing as well.  He states that he never took a drug test at the rehab clinic.  He goes on to state that, while in rehab, his command was determined to put him out of the service and that in order to cope he continued to use cocaine even after testing positive. He further states that he notified the rehab staff that he was using cocaine as well as alcohol and, because of this notification, the 29 November 1999 drug test should not have been used against him.  The applicant infers that he had court-martial charges preferred against him based on the two additional positive drug tests, but that these charges were dismissed due to the fact that the tests were conducted under the rehab program’s limited use regulations.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records that were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2000048007) on 11 January 2001.

The applicant submits copies of documents related to his reductions in grade which include his company commander’s 12 January 2000 recommendation for separation, part of the proceedings of his 21 November 2000 Administrative Separation Board, a summary of his rehabilitation appointments recorded on two appointment information sheets, two court-martial charge sheets for cocaine use, a 26 June 2000 summary of rehabilitation services, and a 30 November 2000 letter from a private substance abuse clinician. 

The applicant’s submissions are new evidence that require Board consideration.

The information packet pertaining to the applicant’s Administrative Separation Board is not complete.  It contains only a summery of evidence and submissions to that board and the board’s findings and recommendation to retain the applicant. 

The 27 September 1999 appointment information sheet shows that the applicant was a self-referral for alcohol abuse counseling.  The 22 November 1999 information sheet still lists the applicant as seeking treatment for alcohol abuse, however, it also lists a self-referral for cocaine.  The listing of appointments does not contain any identifying information as to the reason for the appointments.

As previously noted, the applicant entered active duty on 7 July 1981 and was promoted to the pay grade E-6 on 1 March 1995.  

On 14 September 1999 the applicant received non-judicial punishment (NJP) apparently for an alcohol related incident.  The documentation associated with this action is still not available.  As noted in the previous decisional document, the punishment imposed included a suspended reduction to pay grade E-5. 

On 27 September 1999 the applicant entered the Substance Abuse Rehabilitation Services (SARS) program, as a self-referral for alcohol abuse.  SARS is a part of the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  The initial treatment plan called for the applicant to attend individual counseling sessions, group support meetings, a 6 hour substance abuse education program (ADAPT) and to remain free of all mood-altering substances including alcohol.  The records show that the applicant failed to follow these orders in that he did not attend ADAPT or the group meetings and he failed to remain free of all mood-altering substances.  

The 22 November 1999 appointment roster shows that the applicant was a self-referral for additional counseling.  The reason for referral was listed simply as cocaine.

The applicant’s unit underwent a command directed unit urinalysis screening on 29 November 1999, in which he tested positive for cocaine use.

On 22 December 1999 the applicant’s suspended reduction to pay grade E-5 was vacated.  The applicant was notified of his rights and was present at the vacation proceedings.

On 23 December 1999 the applicant received non-judicial punishment for wrongful use of cocaine based on the positive findings from the urinalysis of 29 November 1999.  His punishment included a reduction to pay grade E-4.

The applicant’s company commander initiated action to separate him under Army Regulation (AR) 635-200, chapter 14, paragraph 12c, commission of a serious offense.  Other than the 12 January 2000 Letter of Intent, there is no information on this action. 

The applicant tested positive for cocaine use on two subsequent urinalyses in March and April 2000.  He was declared a rehab failure at the 21 June 2000 rehab team meeting. 

Two separate court-martial Charge Sheets (DD Form 458) were prepared and signed by the applicant on 26 April 2000 and 8 May 2000, respectively.  Other than the charge sheets, provided by the applicant, there is no other available documentation specifically related to these actions.

The applicant’s company commander apparently started discharge proceedings under Army Regulation (AR) 635-200, chapter 9, Drug or Alcohol Rehabilitation Failure, at or about the time the applicant was declared a rehab failure.  The paperwork for this action is not of record, however, it is this recommendation that appears to have resulted in the applicant’s Administrative Separation Board. 

On 4 December 2000, the applicant appeared, with counsel, before a board of officers convened to consider whether he should be eliminated from the service as an alcohol rehabilitation failure.  That board determined that the applicant should not be declared a rehab failure and was deserving of retention.  

The commanding general apparently accepted the board’s recommendation and retained the applicant.  With his retention on active duty, the applicant requested that his rank be restored.

The Board notes that the applicant appears to have been discharged and placed on the Retired List subsequent to his original application. 

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

Army Regulation 600-85 prescribes policies and procedures needed to implement, operate, and evaluate the ADAPCP.  Paragraph 6-4 pertains to the limited use policy.  It states in pertinent part, that this policy prohibits the use of 
the following evidence against a soldier in actions under the Uniform Code of Military Justice or on the issue of characterization of service in separation proceedings:  

1.  Mandatory urine or alcohol breath test results taken to determine a soldier's fitness for duty and the need for counseling, rehabilitation, or other medical treatment or in conjunction with a soldier's participation in ADAPCP.  

2.  A soldier's self-referral to ADAPCP.  

3.  Information concerning drug or alcohol abuse occurring prior to the date of initial referral to ADAPCP.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  It specifically deals with the abuse of illegal drugs and provides that service members in grades E-5 through E-9, against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom other separation action will not be initiated, will be processed for separation under chapter 14.  It further states that an under other than honorable conditions characterization is normally considered appropriate.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.
The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board rejects the applicant’s contention that, because he was in rehab at the time he tested positive for drugs, the 29 November 1999 urinalysis cannot be used in the NJP actions.

2.  AR 600-85, paragraph 6-4 states that information concerning drug or alcohol abuse occurring prior to the date of initial referral to rehab may not be used in NJP actions.  The first positive drug test was taken after the applicant had been referred for drug rehab. 

3.  Further, the record shows that the 29 November 1999 urinalysis was a command directed unit screening, not a test to determine compliance with the treatment regiment, as the later tests appear to have been.  As such it was not protected information subject to the same limited use provisions under     AR 600-85, paragraph 6-4.  Additionally, if the second and third drug tests were not a part of his rehab testing, then they would not have been protected and could have been used against the applicant for further disciplinary actions. 

4.  The drug and alcohol rehabilitation programs cannot be used as safe havens allowing for the continuation of improper or illegal acts.  The Board notes that the applicant’s command was very lenient in its punishment.  Under the military’s policy of zero tolerance of illegal drug use, the normal consequences of a positive drug test by a noncommissioned officer is an under other than honorable conditions discharge.

5.  The Board concludes that the command acted properly and within its authority in vacating the applicant’s suspended reduction to E-5 and in it subsequent NJP action further reducing the applicant to E-4.

6.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__RVO__  ___JPI __  __RKS__  DENY APPLICATION

	Carl W. S. Chun
	Director, Army Board for Correction
	of Military Records

INDEX

CASE ID	AR AR2001062295	
SUFFIX		
RECON		
DATE BOARDED	20020307	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	133.01	
2.		
3.		
4.		
5.		
6.