IN THE CASE OF: BOARD DATE: 25 NOVEMBER 2008 DOCKET NUMBER: AR20080015208 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 an upgrade of his reenlistment eligibility (RE) code from RE-4 to a more favorable code that would allow him to renter the Army. 2. The applicant states that at the time of his hearing, he was told by his company commander that he would be eligible to reenter the military two years after his discharge. 3. The applicant provided a copy of his DD Form 214 Worksheet in support of his application. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's records show that he enlisted in the Indiana Army National Guard (INARNG) on 8 May 2000. He subsequently entered active duty for training (ADT) on 12 June 2000, completed basic combat and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist). He was honorably released from ADT to the control of his ARNG unit on 9 November 2000. The highest rank/grade he attained during this period of military service was private (PVT)/E-1. 3. The applicant’s records also show he enlisted in the Regular Army for a period of 3 years in the rank/grade of specialist (SPC)/E-4 on 30 March 2003. He was subsequently assigned in his medical MOS to the 1st Battalion, 327th Infantry, Fort Campbell, Kentucky. 4. The applicant’s records further show he served in Kuwait/Iraq from 10 March 2003 to 1 December 2003. His awards and decorations include the Army Service Ribbon, the Army Achievement Medal, the Army Commendation Medal, the Good Conduct Medal, the Global War on Terrorism Expeditionary and Service Medals, the National Defense Service Medal, and the Overseas Service Ribbon. 5. On 13 December 2004, the applicant self-referred himself to the Army Substance Abuse Program (ASAP) after having told his chain of command of increased alcohol use. He was subsequently evaluated and appeared to meet the criteria for poly-substance dependence, and after undergoing a rehabilitation team meeting, the applicant was enrolled in the program and a treatment plan was recommended. 6. The applicant’s records show he attended one group therapy session on 15 December 2004 and failed two subsequent appointments on 20 December 2004 and 29 December 2004. 7. On 12 January 2005, in view of the applicant's inability to remain abstinent as evidenced by an alcohol related incident while enrolled (arrested on a warrant for a serious incident), the applicant was disenrolled from the program and was declared an alcohol and drug rehabilitation failure. 8. On an unknown date in 2005, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 9-2 of Army Regulation (AR) 635-200 (Personnel Separations) for being an alcohol and drug rehabilitation failure. The immediate commander further recommended an honorable discharge. 9. On 28 April 2005, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He elected not to submit a statement on his own behalf. 10. On an unknown date in 2005, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 9-2 of AR 635-200 for alcohol abuse and rehabilitation failure. 11. On 17 May 2005, the separation authority approved the applicant’s discharge under the provisions of chapter 9 of AR 635-200 by reason of alcohol abuse and rehabilitation failure and directed the applicant be furnished an honorable discharge. Accordingly, the applicant was discharged on 26 May 2005. The DD Form 214 he was issued confirms he was discharged with an honorable character of service. This form further confirms that he completed a total of 4 year, 6 months, and 15 days of creditable active military service. Item 27 (Reentry Code) of this DD Form 214 shows the entry "4." 12. AR 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse. A member who has been referred to Army Substance Abuse Program (ASAP) (formerly known as the Army Drug and Alcohol Prevention and Control Program (ADAPCP)) for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. At the time of the applicant’s separation an honorable or general discharge was authorized. However, an honorable discharge was required if restricted use information was used. 13. AR 635-200 states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. AR 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes): a. 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. b. 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. c. RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his RE code should be upgraded to a favorable code that would allow him to reenter the Army. 2. The evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was discharged under the provisions of chapter 9 of AR 635-200 due to alcohol abuse and rehabilitation failure. Absent his alcohol abuse and subsequent rehabilitation failure, there was no fundamental reason to process the applicant for discharge. The underlying reason for his discharge was his alcohol abuse and rehabilitation failure. The only valid narrative reason for separation permitted under that paragraph is "alcohol abuse and rehabilitation failure” and the appropriate RE code associated with this discharge is RE-4. 3. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. Therefore, he is not entitled to relief. 4. The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _XXX _______ ___ 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) AR20080015208 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080015208 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1