Separation for Misconduct
14-3. Characterization of service or description of separation
a. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier's overall record.
Acts or Patterns of Misconduct
14-12. Conditions that subject soldiers to discharge
Soldiers are subject to action per this section for the following:
a. Minor disciplinary infractions. A pattern of misconduct consisting solely of minor military disciplinary infractions. Except as provided in paragraph 1-13c, if separation of a soldier in entry-level status is warranted solely by reason of minor disciplinary infractions, the action will be processed under chapter 11.
b. A pattern of misconduct. A pattern of misconduct consisting of one of the following:
(1) Discreditable involvement with civil or military authorities.
(2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.
c. Commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM.
(1) An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense. (See para 1-43 for civil offenses under investigation by foreign authorities.)
(2) Abuse of illegal drugs is serious misconduct.
(a) However, relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under a or b, above, as appropriate.
(b) All soldiers against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under the provisions of chapter 9 or section II of this chapter will be processed for separation under a, b, or c, above, as applicable.
1. Processed for separation means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action.
2. The immediate and intermediate commanders will recommend separation or retention. Recommendations will be made as to characterization of service. (See para 2-2 or 2-4.)
3. The separation reason in all separations authorized by this paragraph will be misconduct-abuse of illegal drugs. Voluntary (self) identification/referral in accordance with AR 600-85, paragraph 3-2, does not require initiation of separation proceedings under this section.
Alcohol or Other Drug Abuse Rehabilitation Failure
9-2. Basis for separation
a. A soldier who is enrolled in the ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program in one of the following circumstances:
(1) There is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.
(2) Long-term rehabilitation is necessary and the soldier is transferred to a civilian medical facility for rehabilitation.
b. Nothing in this section prevents separation of a soldier who has been referred to such a program under any other provision of this regulation.
c. Initiation of separation proceedings is required for soldiers designated as alcohol/drug rehabilitation failures.
9-4. Characterization of service or description of separation
The service of soldiers discharged under this section will be characterized as honorable or under honorable conditions unless the soldier is in entry-level status and an uncharacterized description of service is required. An honorable discharge is mandated in any case in which the Government initially introduces into the final discharge process limited use evidence as defined by AR 600-85, paragraph 6-4. (See para 2-6h for procedures for reinitiation or rehearing, if appropriate.)
Identification, Referral, and Evaluation
7-2. Methods of identification
a. Early ID is a critical aspect of the ASAP intervention process. Identification occurs through a variety of methods--
(1) Voluntary (self) ID.
(2) Command ID.
(3) Drug testing ID.
(4) Alcohol testing ID.
(5) Medical ID.
7-3. Voluntary (self) identification
a. Voluntary (self) ID is the most desirable method of discovering alcohol or other drug abuse. ... The Soldier's unit commander must become involved in the evaluation process. ... 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 MTF, a chaplain, or any officer or non commissioned officer in their chain of command. ... The Limited Use policy will apply when Soldiers seek help from any of the listed personnel or organizations.
b. In situations where a Soldier reveals to a chaplain that he or she is abusing or has abused alcohol or a drug, privileged communication could limit a chaplain from notifying a Soldier's unit commander. However, the Soldier may waive the communication privilege and allow the chaplain to inform the unit commander. This is required for a Commander to enroll the Soldier in ASAP. If the Soldier does not waive his or her privilege, the chaplain would inform the Soldier that:
(1) Professional alcohol and drug rehabilitation counseling is available through the ASAP counseling services.
(2) The Chaplain cannot assist the Soldier's entry into the ASAP without going through the member's unit commander.
c. Identification resulting from a Soldier seeking emergency treatment for an actual or possible alcohol or other drug overdose, not subsequent to a traffic accident or criminal offense, is considered to be a variation of volunteering. For reporting purposes, such cases will be classified as self referral.
d. The Limited Use Policy restricts the consequences of the Soldier's involvement in the ASAP (see para 10-12 through 10-14). These provisions are unchanged by the mandatory initiation of separation processing of drug abusers, and such separation processing must comply with the provisions of limited use and AR 600-8-24 and AR 635-200.
7-8. Medical identification
(1) If a Soldier reveals, as part of a routine medical screening with a physician or other health care provider, his personal abuse of alcohol or other drugs, 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. ...
7-10. Self referrals
The ASAP counseling staff will conduct an initial interview with all eligible personnel who self-refer to the ASAP counseling center for assistance. During the initial interview, the counselor will advise the Soldier of the unit commander's role in the referral, evaluation and rehabilitation process, or other disposition, explain Limited Use Policy , and provide information about ASAP services. ...
Evaluation process for military personnel
a. An in-depth individual biopsychosocial evaluation interview will be conducted with all individuals who are either referred for evaluation or who voluntarily seek assistance. The ASAP counselor will explain the Limited Use Policy. ...
d. If a unit commander believes a Soldier does not have potential for future service, the Soldier will be processed for administrative separation in accordance with AR 600-8-24 or AR 635-200, as appropriate. If rehabilitation services are indicated, the Soldier will be provided services until separation.
Administrative and Uniform Code of Military Justice Actions for Soldiers
10-4. Administrative and Uniform Code of Military Justice options
a. Commanders may take the following actions against Soldiers who test positive for illegal drugs or for illicit use of legal drugs when a MRO determines the Soldier has no legitimate medical purpose for taking the drug:
(1) Administrative actions-
(a) Oral or written counseling/reprimand.
(b) Suspension of access to classified information.
(2) UCMJ actions-
(a) Nonjudicial punishment.
(b) Court Martial.
b. Any legal or administrative actions should be based on the substance abuse-related incident that resulted in the referral to the ASAP; actions will NOT be based on the screening or enrollment determinations.
... 10-6. Separation Actions
The following policies will apply to separations initiated under provisions of AR 135-175, AR 135-178, AR 600-8-24, and AR 635-200. The basis for separation for alcohol and drug abuse and authority for retention are as follows:
a. Soldiers determined by the commander as a rehabilitation failure, as determined in paragraph 8-13, will be processed for separation in accordance with separation regulations; in addition, Soldiers with a subsequent alcohol- or drug-related incident of misconduct at any time during the 12-month period following successful completion of the ASAP or during the 12-month period following removal from the program, for any reason, will be processed for separation as an alcohol or drug abuse rehabilitation failure. The term "process for separation" means that the separation action will be initiated and processed through the chain of command to the separation authority for appropriate action.
b. Except for Soldiers referred to a court-martial authorized to impose a punitive discharge, commanders will process for separation all Soldiers who are—
(1) Identified as illegal drug abusers (as defined in this regulation).
(2) Involved in two serious incidents of alcohol-related misconduct within a 12-month period. A serious incident of alcohol-related misconduct is defined as any offense of a civil or military nature that is punishable under the UCMJ by confinement for a term exceeding 1 year.
(3) Involved in illegal trafficking, distribution, possession with intent to distribute, or sale of illegal drugs.
(4) Tested positive for illegal drugs a second time during their career.
(5) Convicted of DWI or DUI a second time during their career.
c. For Active Army and U.S. Army Reserve Active Guard Reserve (AGR) Soldiers who meet separation criteria in paragraph b, above, but for whom commanders support retention, the retention authority will be elevated to the first GO in the chain of command with a judge advocate or legal advisor available in accordance with the provisions below. For instances in which the retention authority is elevated it may not be delegated.
(1) NCOs (corporal and above) processed for separation as provided for in paragraph b(1), above, require a retention decision from the first GO in the chain of command. All separation decisions (including retention in the Army) for specialist and below will remain with existing separation authorities.
(2) All enlisted Soldiers processed for separation as a result of drug or alcohol misconduct as provided for in paragraphs b(2) through b(5), above, require a retention decision from the first GO in the chain of command.
(3) All separation actions on enlisted Soldiers with 18 or more years of qualifying service for retired pay will be submitted to HQDA for final decision in accordance with existing regulatory provisions.
10-9. Actions before, during and after deployments and reassignments
(1) Legal and administrative actions against a Soldier on deployment orders with a confirmed positive drug test may be suspended at the discretion of the separation authority until the Soldier's unit redeploys from the theater of combat operations.
(2) The unit commander in consultation with the ASAP counseling staff will determine the deployment availability of Soldiers enrolled in the ASAP. The same standards used for other medical treatment will be applied. Ordinarily, Soldiers:
(a) Enrolled in the ASAP who are receiving Level I counseling services will be carefully assessed to determine their progress in treatment and their access to ASAP services to include tele-behavioral medicine in the theater area of operation. Final determination on Soldier deployment availability will be made by the commander, in consultation with the counselor. When the commander determines a Soldier to be in need of further Level I services unavailable in theater, the Soldier will remain at the current duty station until treatment is completed. Upon successful completion, as determined by the commander in accordance with paragraph 8-13a, Soldiers will be eligible for deployment.
(b) Undergoing inpatient detoxification have a temporary physical profile and are not deployable.
(c) Participating in, or awaiting admittance to, an ASAP partial inpatient care program are not deployable until successful completion of the inpatient and outpatient follow-up services. Upon successful completion, Soldiers will be eligible for deployment.
(1) Soldiers enrolled in the ASAP who are receiving Level I counseling services will be carefully assessed to determine their progress in treatment and their access to ASAP services at the gaining installation. Final determina-tion on Soldier reassignment availability will be made by the commander, in consultation with the counselor. When a commander determines that a Soldier needs further services at the current installation, the Soldier will remain stabilized until the commander determines that the Soldier’s progress supports reassignment. The servicing ASAP CD will provide the effective date of stabilization (date of determination) to the military personnel office for enlistedpersonnel or the appropriate DA assignment authority for officers.
(2) Continuity of client counseling is critical to successful rehabilitation. The losing CD will monitor the departure of enrolled Soldiers, notify the gaining ASAP, and ensure that ASAP client records are forwarded through the local MTF’s patient administration division to the gaining ASAP counseling center. If the losing ASAP counseling center is unable to determine the location of the gaining ASAP counseling center within 60 days, the losing CD will provide ACSAP with the social security account number. The ACSAP will then query the Total Army Personnel Database for assignment information and contact the gaining ASAP counseling center to verify the Soldier’s assignment. The gaining ASAP counseling center will notify the losing ASAP counseling center and patient administration division of the Soldier’s assignment in the most expeditious manner and request the Soldier’s ASAP outpatient medical record.
(3) To complete the mandatory follow-up outpatient program, patients who have received ASAP inpatient care should be stabilized in their current assignment for 12 months from the date of the inpatient enrollment. The servicing ASAP CD will provide the effective date of stabilization (date of enrollment) to the Military Personnel Office for enlisted personnel or the appropriate DA assignment authority for officers. Soldiers serving in CONUS should be stabilized in their present unit assignment for 12 months from the date of inpatient enrollment, and their records should be annotated to ensure stabilization. Soldiers serving OCONUS will not be involuntarily extended beyond their established date eligible for rotation overseas to complete the mandatory follow-up Level I program. Follow-up rehabilitation can be obtained at the next CONUS duty station. However, unit commanders should encourage Soldiers to extend their overseas tour voluntarily, under the provisions of AR 614–30, paragraph 6–2 g, to receive the maximum benefit of this program. Stabilization may be terminated, requests for early termination of the 12 month stabilization will be forwarded through U.S. Army Medical Command (MCHO–CL–H), 2050 Worth Road, Fort Sam Houston, TX 78234–6000 to Headquarters, Department of the Army (DAPE–HRS), Army Center for Substance Abuse Programs, 4501 Ford Avenue, Suite 320, Alexandria VA 22302–0000.
Section III Legal actions for Soldiers
10-13. Definition of the Limited Use Policy
a. Unless waived under the circumstances listed in paragraph 10-13d of this regulation, 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. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy is limited to:
(1) Results of command-directed drug or alcohol testing that are inadmissible under the MRE. ...
(2) Results of a drug or alcohol test collected solely as part of a safety mishap investigation undertaken for accident analysis and the development of countermeasures is further described in paragraph 4-5.
(3) 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 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. If treatment takes place at a civilian facility, the Soldier must give written consent to the treating civilian physician or facility for release of information to the Soldier's unit commander concerning the emergency treatment rendered. If the medical treatment resulted from an apprehension by military or civilian law enforcement authorities, or if the admission for treatment resulted from other than abuse of alcohol or drugs, such as for injuries resulting from a traffic accident, the limited use protection will not be available to the Soldier.
(4) A Soldier's self-referral to the ASAP.
(5) 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.
(6) Drug or alcohol test results, if the Soldier voluntarily submits to a DOD or Army rehabilitation program before the Soldier has received an order to submit for a lawful drug or alcohol test. Voluntary submission includes Soldiers communicating to a member of their chain of command that they desire to be entered into a rehabilitation program. 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.
(7) The results of a drug or alcohol test administered solely as a required part of a DOD or Army rehabilitation or treatment program.
b. The Limited Use Policy does not prevent a counselor from revealing, to the commander or appropriate authority or others having a need to know, knowledge of certain illegal acts which may compromise or have an adverse impact on mission, national security, or the health and welfare of others. The unit commander will report the information to the appropriate authority. Likewise, information that the client presently possesses illegal drugs or that the client committed an offense while under the influence of alcohol or illegal drugs, other than prior illegal possession incident to the prior use, is not covered under this policy. Limited use is automatic. It is not granted, and it cannot be vacated or withdrawn. It may be waived in the situations described in paragraph 10-13d of this regulation.
c. An order from competent authority to submit to urinalysis or breath or blood alcohol test is presumed a lawful order. Soldiers who fail to obey such orders may be the subject of appropriate disciplinary action under the UCMJ.
d. The Limited Use Policy does not preclude the following:
(1) The introduction of evidence for impeachment or rebuttal purposes in any proceeding in which the evidence of drug abuse (or lack thereof) has first been introduced by the Soldier. ...
(2) The initiation of disciplinary or other action based on independently derived evidence, including evidence of continued drug abuse after initial entry into the ASAP.
e. 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.
Army Substance Abuse Program in the Army National Guard
The ASAP policies and procedures in this regulation apply to all components of the Army, including the Army National Guard. However, due to the different laws and conditions that affect National Guardsmen when they are on state and federal duty, some additional ASAP policies and procedures also apply. This chapter establishes those specific policies, responsibilities, and procedures for implementing and managing the ASAP in the ARNG.
a. This chapter applies to all ARNG Soldiers, except for personnel in the following duty categories, who are covered by the provisions in the other chapters of this regulation:
(1) Active duty of 30 days or more that is not for training, including AD in an Active Guard Reserve status under Title 10 USC.
(2) Special tours of active duty for training (ADT) of 30 days or more.
(3) Initial AD training (IADT).
(4) Involuntary ADT of 45 days or more.
(5) Soldiers ordered to AD status during periods of partial, full, or total mobilization.
Policies and procedures
Illegal drug use is misconduct and the abuse of alcohol or the use of illicit drugs by both military and civilian personnel is inconsistent with the standards of performance, discipline, and readiness necessary to accomplish the Army's mission.
a. The ARNG Soldiers identified as illegal drug users will be simultaneously:
(1) Counseled by the unit commander for possible enrollment in a state-certified, community-based alcohol or other drug counseling and rehabilitation service within 45 days of verified positive drug test.
(2) Processed for administrative separation within 45 days of receipt of the verified positive drug test. Soldiers may be considered for disciplinary action prior to separation.
15-14. Referral of alcohol and illegal drug abusers to a state-certified rehabilitation program
Chapter 7 of this regulation applies to the ARNG...
15-16. Administratively separating drug abusers
Chapter 10 of this regulation applies to the ARNG, except that:
a. Unit commanders will process every ARNG Soldier identified as an illegal drug user for administrative separation. The separation action will be forwarded to the separation authority, which will make a final determination on separating or retaining the Soldier.
Army Substance Abuse Program in the U.S. Army Reserve
The ASAP policies and procedures in this regulation apply to all components of the Army, including the USAR. However, due to the different laws and conditions that affect Army Reservists when their are on reserve and AD, some additional ASAP policies and procedures also apply. This chapter establishes policies, responsibilities, and specific procedures for implementing and managing the ASAP within the USAR.
a. This chapter applies to USAR Soldiers while not on AD for 31 days or more in the following categories:
(1) Troop program units.
(2) Individual Mobilization Augmentee Program.
(3) Individual Ready Reserve.
(4) Soldiers serving on various tours of ADT, Temporary Tours of AD, and AD for Special Work for less than 31 days. Soldiers performing tours of 31 days or more will comply with provisions listed for Active Army personnel.
b. This chapter does not apply to USAR Soldiers activated under a Presidential Selected Reserve Call-up, partial, full, or total mobilization. ASAP policies for Active Army Soldiers apply to these Soldiers.
Policies and procedures
a. The USAR Soldiers identified as drug abusers will be--
(1) Counseled by the unit commander, in person or by certified mail for possible enrollment in the USAR ASAP. Command counseling sessions will be conducted within 30 calendar days, or by the close of the next drill session, after the receipt of MRO-verified positive drug test report.
(2) Flagged immediately ... to suspend favorable personnel actions until separation procedures for misconduct are adjudicated.
(3) Processed for administrative separation. Administrative separation will be initiated and processed to the separation authority for decision on any Soldier with a positive drug test that could not have resulted from legitimate medical use of a drug. Processing will be initiated within 30 calendar days of receipt of a positive drug test or if the case requires MRO review, within 30 calendar days of receipt of the MRO-verified positive drug test report. In addition, Soldiers may be considered for disciplinary action under the UCMJ if use on AD can be validated.
16-11. Referral of alcohol and illegal drug users in the U.S. Army Reserve Army Substance Abuse Program
Chapter 7 of this regulation applies to the USAR...
b. ... Soldiers will be advised that they:
(1) Must promptly arrange for an evaluation, which should take place not later than 30 days from date of the command counseling session.
(2) Sign a consent statement for release of counseling information, which allows the counseling personnel to share necessary information with the commander or designee. ... Methadone maintenance and mandatory Disulfiram (Antabuse) treatment will not satisfy the rehabilitation requirements of this chapter. Soldiers may refuse to sign the consent statement. However, these Soldiers may be deemed not to be participating sufficiently in rehabilitation. Refusal to sign may result in their being processed for separation for rehabilitation failure.
(3) Must understand that failure to seek counseling, refusal to sign a consent to release information to the commander, or to participate and complete rehabilitation successfully, will result in initiation of separation proceedings under appropriate officer or enlisted separation regulations.