MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 14 February 2002
         DOCKET NUMBER: AR2001063450

         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
Ms. Antoinette Farley		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Barbara J. Ellis		Member
Mr. John E. Denning		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)

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APPLICANT REQUESTS: In essence, that the reason for his separation be changed from a involuntary discharge for alcohol rehabilitation failure under honorable conditions to “Early Out or Early Retirement under honorable conditions.”

APPLICANT STATES: In effect, that he requested a early retirement and was told by his “PAC” it was denied. He claims, that he was never given a reason for the denial, especially when his military occupational specialty (MOS) 92G (Food Service Specialist) was “being let out”. Therefore, he believes he deserves an “early out or early retirement” discharge. He was involuntarily discharged for alcohol rehabilitation failure, because he decided that he no longer needed to be in the program. In fact, he was the one who chose to volunteer for the program. He never got into trouble due to alcohol or any other incidents while assigned to duty at Fort Hood, Texas. He claims that he should receive full separation pay based on his military record and years of service, instead he only received half of his separation pay. He requests that the Board, “please help him in the name of Jesus, because he wants to serve his country and did serve his country proudly”. In support of his claim he submits a self-authored 4-page letter, a copy of his DD Form 214 (Release or Discharge from Active Duty) dated 21 August 1998 and makes the statement that “his record speaks for it self.” He also requests that his Re-entry (RE) Code be changed.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the Regular Army on 20 September 1983, for 3 years. He completed both basic combat training and advanced individual training in military occupational specialty (MOS) 11B1P (Infantryman) at Fort Benning, Georgia. He was then assigned to duty at Fort Bragg, North Carolina.

The medical evidence of record indicates that on 2 February 1993, the applicant received medical treatment for chronic right knee pain. On 17 February 1993, he was issued a permanent physical profile, with the following limitations: run at own pace and distance with no parachute duty.

On 6 June 1995, he received another permanent physical profile diagnosis as right knee patella tendonitis. His military record shows that his performance in the company was less than average. His commanding officer also pointed out that as an infantryman, he is required to run long distances with a substantial load, since he is unable to do so, he would be a liability on the battlefield. He states that his condition would prevent success in his PMOS and recommended that he be reclassified to another MOS at a minimum. He was then reassigned to Alpha Company, Air Base Ground Defense Command, Fort Dix, New Jersey for 12 months as an instructor for two of the platoons in the Air Force Base Defense Company.
On 4 August 1995, he reenlisted for 6 years, at Fort Dix, New Jersey as a squadron instructor.

On 18 September 1995, the MOS/Medical Retention Board (MMRB) found the applicant had physical limitations, which precluded him from performing duties in MOS 11B30. The MMRB also concluded that his previous experience in leadership positions would allow him to perform and lead soldiers in another, less physically demanding MOS. The applicant stated his interest in being reclassified into an MOS 71 (Personnel). In addition, MMRB recommended he be reclassified into an MOS within the CMF 71 (Personnel).

On 9 April 1996, Headquarters, United States Army Garrison, Fort Dix, New Jersey issued orders 100-005, awarded the applicant a new primary MOS of 92G (Food Service Specialist) and he was reassigned to Fort Hood, Texas for duty.

On 8 July 1997, the applicant’s commanding officer, requested a reevaluation of his permanent profile (P3), since execution of his duties, as a Food Service Sergeant, was “extremely painful.”

On 18 August 1997, the applicant was medically referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), because of an alcohol- related incident. On 25 August 1997, he was screened and enrolled in the ADAPCP as an outpatient at Fort Hood, Texas.

On 8 September 1997, the applicant appeared before a second MMRB proceeding and was approved for reclassification or change of MOS.

On the same day a DA Form 4187 (Personnel Action) authorized the applicant’s request for reclassification to one of the following MOS: 88N (Traffic Management Coordinator), 74F (Software Analyst), 75H (Instructor), 71L (Administrative Specialist), 79R (Recruitment and Reenlistment) as recommended by the MMRB, as long as he met all other qualifications.

On 13 May 1998, the U. S. Army Medical Department Activity, Fort Hood, Texas in conjunction with ADAPCP Staff, declared the applicant a rehabilitation failure.

Within the same time frame as the applicant’s separation, an advance message drafted by the Total Army Personnel Command (MILPERS Message NR 98) without a MILPERS daytime group NR did in fact outline eligibility requirements and application procedures for an Enlisted Early Retirement Program FY98. In order to apply for the program soldiers must have held the rank of a SSG, SSG (P), SFC or SFC (P) with greater than 15 years, but less than 20 years of service, held an unrestricted primary MOS as listed in the message and be eligible for retirement no later than the 30 June 1998. In keeping with the requirements within the message, the applicant was ineligible to apply for the FY98 early retirement program.

On 2 June 1998, the applicant was counseled by the ADAPCP staff for being an ADAPCP Rehabilitation Failure.

On 9 July 1998, his commander notified him that he was initiating separation action under the provisions of chapter 9, Army Regulation (AR) 635-200, for being an alcohol rehabilitation failure. The applicant acknowledged notification.

On 17 July 1998, the applicant consulted with legal counsel and indicated in writing that he understood that he was being separated under the provisions of chapter 9, AR 635-200. He waived all rights and did not make a statement in his own behalf.

On 24 July 1998, the approving authority ordered the applicant's separation under the provisions of chapter 9, AR 635-200 for Alcohol Rehabilitation Failure and directed an honorable discharge. He was discharged on 21 August
1998 with 14 years, 11 months and 02 days of creditable service and no lost time. He was assigned a separation program designator of JPD and a reentry code of RE-4. He received "half separation pay" in the amount of $17,912.04.

There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) seeking a discharge change of reason and/or the authority for the separations. He has 15 years from the date of separation to apply to the ADRB.

Army Regulation 635-200 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 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 if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Army policy states that an honorable or general discharge is authorized depending on the applicant’s overall record of service.

In accordance with AR 635-5-1, the narrative reason for separation placed on the applicant’s DD Form 214 (Report of Separation or Discharge from Active Duty) would be "Alcohol Rehabilitation Failure." The chapter provides a list of the Armed Forces RE codes, which will be are to be entered on the DD Form 214. During the time period in which the applicant was separated, the appropriate codes as shown in the Army Regulation, Table 2-2 (SPD/RE Cross Reference Table) would show JPD as his separation program designator (SPD), with an entry of RE-4, as his reentry code.
Department of Defense Financial Management Regulation (DOD Pay Manual) Volume 7A, chapter 35, prescribes the policies and procedures for separation pay. Effective 20 June 1991, service members who are fully qualified for retention on active duty or full-time National Guard duty and have at least 6 or more years of continuous federal service are eligible for full (non-disability) separation pay. Half payment of non-disability separation pay is authorized to members of the regular and reserve components who are involuntarily separated from active duty under the following conditions: (a) service is characterized as honorable or general; (b) not fully qualified (emphasis added) for retention; and (c) separated for denial of reenlistment or the denial of confirmation on active duty or full-time National Guard Duty because of expiration of service obligation, selected changes in service obligation, convenience of the government, homosexuality, alcohol or drug abuse rehabilitation failure, security or weight control and other reasons listed in Table 35-6. (In extraordinary instances, the Service Secretary may award full separation pay when the specific reason for separation and the overall quality of service indicate that denial of full pay would be clearly unjust.)

Pertinent Army regulations provide 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. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

Reentry codes 1 and 2 essentially indicate a soldier is eligible to reenlist, in some cases after a break in service. Reentry code RE-3 indicates a soldier may be eligible to reenlist with a waiver as granted by recruiting officials. Reentry code RE-4 indicates that a soldier is not eligible to reenlist.

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. There is no evidence of record to substantiate the applicant’s claim that he applied for or was denied authorization of a FY98 early retirement. Since the applicant did not have 15 years of active duty service, he was ineligible to apply.

2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
4. The applicant was separated for alcohol rehabilitation failure and the half separation pay he received was correct.

5. There appears to be no basis for removal or waiver of that disqualification which established the basis for the RE code. The RE code was not assigned in error and still is appropriate under the current regulations.

6. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.

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

__JNS __ __BJE __ ___JED _ DENY APPLICATION

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

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