IN THE CASE OF: BOARD DATE: 9 September 2022 DOCKET NUMBER: AR20220000548 APPLICANT REQUESTS: * restoration of his rank/grade to staff sergeant (SSG)/E-6 with entitlement to back payment of allowances * placement on the retired list at the rank/grade of sergeant first class (SFC)/E-7 * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 8003 (Army Substance Abuse Program (ASAP) Enrollment), dated 14 April 2016 * ASAP, dated 19 April 2016 * SF 600 (Chronological Record of Medical Care), dated 19 April 2016 * DA Form 4465 (Patient Intake/Screening Record), dated 3 May 2016 * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 13 July 2016 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in pertinent part that he was assigned to the Warrior Transition Battalion (WTB) after being diagnosed with Post-Traumatic Stress Disorder (PTSD), depression and anxiety in order to help facilitate a Medical Evaluation Board (MEB). He contests that while he was assigned to the WTB, he was diagnosed with a Traumatic Brain Injury (TBI), resulting from an incident that occurred 2-years prior when he was injured while disarming an Improvised Explosive Device (IED) in Afghanistan. During his over 16 years of military service, his performance was recognized with him being awarded the Purple Heart, Bronze Star Medal (with Valor) and the Bronze Star Medal. His professional performance has been rated as "among the best" in 2 of his last 3 evaluations. While in the military, he served in a variety of career enhancing positions to include Equal Opportunity, Sexual Harassment Assault Response Program and Master Resilience Training. As an 89D (Explosive Ordnance Disposal (EOD) Specialist, he served on the Presidential Security Detail. a. He notes that he has lost the ability to contest what he perceives to be an unjust punishment. Since arriving at the WTB, he has been subject to Nonjudicial Punishment (NJP) under the UCMJ. At the time of application, he was being processed for separation under Chapter 14 (Misconduct). b. While assigned to the WTB, he took the initiative to self-enroll in the ASAP because he had been utilizing marijuana to assist with his PTSD. He knows that this was not the proper choice but at the time he believed that it was the best course of action because he had already attempted suicide previously. He utilized the Army's resources to rectify his poor choices. He self-enrolled and in between the time he was triaged (18 April 2016) and actually enrolled (3 May 2016) a unit urinalysis was conducted which of course he failed. Unbeknownst to him a second substance was found in his urine sample (cocaine). He states that the ASAP counselor advised his leadership that the urinalysis could not be utilized for punitive action because the urinalysis was protected under the Army's Limited Use Policy. 3. A review of the applicant's available service records reflects the following: a. After serving in the Army National Guard, on 15 March 2007, the applicant enlisted in the Regular Army. b. On 30 September 2009, Headquarters, 41st Fires Brigade issued Orders Number 273-12 promoting the applicant to rank/grade of sergeant (SGT)/E-5. c. On 1 April 2012, the applicant was promoted to the rank of SSG. d. On 28 April 2016, the applicant tested positive for cocaine and Tetrahydrocannabinol during a command directed (100 percent) urinalysis (testing code: IU (Inspection Unit/Unit Sweep)). e. On or about 12 July 2016, the applicant accepted NJP under the provisions of Article 15 UCMJ for violating Article 112a (Wrongful Use, Possession etc. of a Controlled Substance) in that between 21-28 April 2016 he wrongfully used cocaine, a schedule II-controlled substance. The issuing commander imposed the following punishment: reduction to SGT, extra duty and restriction. The applicant did not appeal this action. f. On 13 July 2016, the applicant was reduced to SGT. g. On 5 October 2017, a Formal Physical Evaluation Board (PEB) convened and found the applicant physically unfit for continued military service due to his diagnosed PTSD. The Board recommended that he be placed on the Temporary Disability List (TDRL) with a rating of 70 percent. h. On 23 October 2017, the Installation Management Command issued Orders Number 296-0036 releasing the applicant from assignment and duty because of a physical disability incurred while entitled to basic pay. i. On 26 December 2017, the applicant was honorably released from active duty for retirement due to a temporary disability at the rank of SGT. DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects award of the Purple Heart and the Bronze Star Medal (w/ "V" device). While in the military, the applicant served as an 89D and a 92F (Petroleum Supply Specialist). j. On 27 December 2017, the applicant was placed on the TDRL. k. On 29 January 2020, an Informal PEB convened finding the applicant physically unfit for continued military service due to his diagnosed PTSD. The Board recommended that the applicant be permanently retired with a disability rating of 70 percent. l. On 25 February 2020, the U.S. Army Physical Disability Agency issued Orders Number D056-47 removing the applicant from the TDRL and permanently retiring him at the rank of SGT, effective 25 February 2020. 4. The applicant provides the following a: a. DA Form 8003 dated 14 April 2016, reflective of the applicant's self-referral into the ASAP for a comprehensive assessment to determine if he met the criteria for enrollment. On 15 May 2016, the applicant was enrolled in track II rehabilitation. b. ASAP dated 19 April 2016, reflective of the risks and benefits associated with enrollment in ASAP. The applicant was advised of the Army's Limited Use Policy wherein it provides that admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to the ASAP and provided by Soldiers as part of their initial entry into the ASAP. This includes an enrolled Soldier's admission to a physician or ASAP counselor concerning alcohol or other drug abuse incidental to personal use occurring prior to the initial date of referral to the ASAP. c. SF 600 dated 19 April 2016, reflective of documentary evidence of the applicant being screened for ASAP enrollment. The applicant was scheduled for a full ASAP assessment to be conducted on 3 May 2016. d. DA Form 4465 dated 3 May 2016, reflective of the applicant being enrolled in ASAP due to a cannabis use disorder. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board determined the UCMJ action that reduced the applicant in rank was just and would not be upset by this Board. There is insufficient evidence to grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel systems. a. Paragraph 1-11 (Non-Promotable Status) provides that Soldiers (Specialist (SPC) through Master Sergeant (MSG) except as noted) are non-promotable to a higher rank when they have an approved retirement, a field or Headquarters Department of the Army bar to continued service or has a pending or approved administrative separation. Further, Soldiers punished under the Uniform Code of Military Justice (UCMJ), Article 15, including suspended punishment are also non-promotable. Summarized proceedings imposed are excluded and will not result in non-promotable status. The Soldier regains promotion eligibility on the day of completion of the period of correctional custody, suspension, restriction, extra duty, and/or suspended forfeiture of pay, whichever occurs later. Soldier is denied favorable personnel actions under the provisions of AR 600𤾄 (Suspension of Favorable Personnel Actions (Flag)) (applicable for promotion to PV2 through SGM). Failure to initiate DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) does not affect the Soldier's non- promotable status if a circumstance exists that requires imposition of a suspension of favorable personnel actions (Flag) under the provisions of AR 600𤾄. When a Soldier is command-referred and enrolled in the Army Substance Abuse Program (ASAP), the Soldier becomes non-promotable. Self-referred Soldiers are eligible for promotion while enrolled in ASAP, provided otherwise qualified in accordance with the other provisions of this paragraph. A self-referral who is later command-referred to ASAP based on evidence not protected by the limited-use policy becomes non-promotable upon command referral to ASAP. b. Paragraph 1-21 (Promotion of Soldiers in the Disability Evaluation System) provides that Soldiers in the Disability Evaluation System (DES) process who are pending a medical fitness determination i.e., referral to a MEB, or PEB remain otherwise eligible for promotion consideration, selection, and pin-on. Per the provisions of Title 10, USC, section 1372, Soldiers on a promotion list who are retired for physical disability (Title10, USC, sections 1201 or 1204) or who are placed on the TDRL (Title 10, USC, sections 1202 or 1205) at the time of retirement for disability will be retired for disability at the promotion list grade. The Soldier will be promoted effective the day before placement on the retired list or TDRL regardless of cutoff scores, sequence numbers, or position availability. In all cases, the Soldier must otherwise be eligible for promotion in accordance with paragraph 1-11. c. Section VI (Reduction Orders and Restoration to Former Rank) provides that Administrative reductions are announced in orders for SGT and above or on a DA Form 4187 for CPL and/or SPC and below. These will be filed in the individual Soldier's personnel file. Reduction instruments will cite the basis for reduction (such as inefficiency or failure to complete training) and the authority for the action. When reduction is for other than misconduct or misconduct based on civil conviction, the reduction instrument will cite the basis, authority, and the appropriate paragraph. 3. AR 600-85 (Army Substance Abuse Program) provides that commanders may initiate administrative or UCMJ action against Soldiers who test positive for illegal drugs or for illicit use of legal drugs when an Medical Revie Officer determines the Soldier has no legitimate medical purpose for taking the drug. Paragraph 10-11 (Limited Use Policy) provides the objectives of the Limited Use Policy are to facilitate the identification (ID) of Soldiers, who abuse alcohol and other drugs by encouraging ID through self-referral to facilitate the 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. 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. Protected evidence under this policy is limited to: * results of command-directed drug or alcohol testing that are inadmissible under the Military Rules of Evidence (MRE) * results of a drug or alcohol test collected solely as part of a safety mishap investigation * 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 * self-referral to ASAP * admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to the ASAP and provided by Soldiers as part of their initial entry into the ASAP * drug or alcohol test results, if the Soldier voluntarily submits to a Department of Defense (DOD) or Army rehabilitation program before the Soldier has received an order to submit for a lawful drug or alcohol test * The results of a drug or alcohol test administered solely as a required part of a DOD or Army rehabilitation or treatment program. a. This limited use protection will not apply to test results, which indicate alcohol or other drug abuse occurring after the voluntary submission to the rehabilitation program. Examples: The unit commander has ordered a urinalysis on Monday for all members of the unit (an inspection under MRE 313). Before receiving an order (or having knowledge of a pending test) to appear for the urinalysis, a Soldier approaches the platoon sergeant, admits having used illegal drugs over the weekend, and indicates a desire to receive help. Later that day, the Soldier is ordered to and provides a specimen for the urinalysis, which results in a positive report for cocaine use. Those results are protected by the limited use policy unless there is some evidence that demonstrates the use reflected by the test occurred after the admission was made to the platoon sergeant. Later that week, the commander orders another unit inspection for the following Monday. The inspection is conducted properly under MRE 313, and the Soldier once again has a positive result for cocaine. These test results, as interpreted by an Army Forensic Toxicology Drug Testing Laboratory (FTDTL) expert, indicate the Soldier had used cocaine after admitting use to the platoon sergeant. This test result is not protected by the Limited Use Policy. b. The Limited Use Policy does not preclude the initiation of disciplinary or other action based on independently derived evidence, including evidence of continued drug abuse after initial entry into the ASAP. If the command is made aware of a Soldier's illegal drug use through the Soldier's self-referral and admissions, the requirement to initiate separation proceedings pursuant to the appropriate enlisted or officer separation regulation will not apply. The unit commander may initiate a separation action; however, the information is protected by the Limited Use Policy. c. Specimens which are collected in compliance with MRE (for example, inspection by command policy, search, seizure, or consent) may be used for any lawful purpose. If specimens do not satisfy the standards of admissibility, these tests will be protected by the Limited Use Policy. 4. AR 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 may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000548 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1