Q. I self-referred to a substance abuse program. Does that mean the military still must give me an honorable discharge if my command tries to separate me?

A. Service members struggling with drug or alcohol abuse must keep in mind that their self-referral to a substance abuse program does not grant them blanket immunity from unfavorable discharges. It's true that if a commander tries to administratively separate a service member because of his or her involvement in such a program, then the discharge cannot be below an honorable characterization.

But that policy, which places illegal drug use prior to the self-referral beyond the reach of disciplinary actions under the Uniform Code of Military Justice and discharge characterization determinations, is very limited. In fact, the Army actually refers to it as a "limited use policy."

As I had mentioned in an earlier column, these limitations are not extended to just any service member who tells a unit commander or other appropriate individuals that he or she needs help with an addiction. There must be an actual addiction problem and the self-referral must be voluntary — meaning it was not prompted by an order to submit to a urinalysis or an investigation or arrest.

Each service has its own limited use policy, but evidence of post-referral illegal drug use could be used to support disciplinary or administrative separation actions with no limitation on discharge characterization. For example, Air Force Instruction 44-121 specifically excludes from the Air Force's limited protection policy "evidence of continued drug abuse after the member initially entered the treatment program."

The limited use policy also does not cover offenses committed while under the influence of drugs or alcohol. Under Army Regulation 600-85, if a self-referred service member discloses during a treatment session that he or she did anything that would "compromise or have an adverse impact on mission, national security, or the health and welfare of others," a substance abuse counselor can disclose this information to a commander for potential use during disciplinary or other actions.

What's more, service members can be charged with being absent without leave for skipping mandatory substance abuse counseling sessions. However, the limited use policy could apply to a self-referred service member's failure to complete a treatment program because of such lack of participation. The policy could prohibit that failure from being used as a basis for characterization of service, as the Army Board for Correction of Military Records found in a 2011 case.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

In Other News
Load More