MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 9 October 2003
                  DOCKET NUMBER: AR2003085614

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Robert J. Osborn, II		Member
Ms. Eloise C. Prendergast		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 effect, that his reentry (RE) code be changed from a code of RE-4 to a code that will allow him to enlist in the Army National Guard (ARNG).

APPLICANT STATES: In essence, that while he was assigned as cadre at the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas, with duties as a platoon sergeant, he was command-referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) based on false accusations and the battalion commander's perception of him. The battalion commander did not believe in alcohol consumption based on his religious beliefs. The applicant states that he was referred to ADAPCP on three separate occasions and that there were three negative findings by the ADAPCP staff. After the third referral, he had had enough and requested reassignment to a different command. His request was denied. He therefore had no options other than to request separation. He was informed that his discharge would be honorable and he could reenlist after 6 months, if he so desired. The ARNG for the State of Kansas denied him the opportunity to enlist due to his RE code.

The applicant further states that he is a highly decorated soldier with an impeccable service record. He was consistently promoted ahead of his peers and he received numerous honors due to his duty performance. He is currently employed as a Deputy Sheriff for the Osborne County Sheriff's Office in Osborne, Kansas. He has served as a police officer in numerous aspects since his employment. He submits in support of his request character reference letters signed by a captain and an investigator, both members of the Osborne County Sheriff's Department. The letters state that the applicant had been a law enforcement officer since March of 2002; at the time the letters were written, the applicant had recently graduated from a police tactical operations course and he was a member of the North Central Kansas Task Force. He had satisfactorily performed the duties associated with his position. He was efficient and professional and a key asset to his organization.

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

Prior to the period of enlistment under review, he served continuously in the Regular Army (RA) through a series of successive enlistments/reenlistments from 3 March 1981-4 November 1985; 5 November 1985-12 September 1988; and from 13 September 1988-10 December 1992. On 11 December 1992, he reenlisted in the RA for 4 years in his previous military occupational specialty (MOS) 95C (Corrections Officer) and in pay grade E-6.

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The applicant served as a drill sergeant at Fort McClellan, Alabama, from 15 July 1991 until he was assigned to Korea on 19 July 1993. He returned to the United States and, on 25 July 1994, he was assigned to the USDB at Fort Leavenworth, serving first as a corrections noncommissioned officer and then as a Platoon Sergeant.

The applicant was referred to the ADAPCP for evaluation by his chain of command, due to a drunk and disorderly charge stemming from an incident that occurred on 26 December 1994, at Fort Knox, Kentucky. On 3 February 1995, the applicant, the applicant's commander, and an ADAPCP counselor met and it was determined the applicant had problems significant enough to warrant enrollment in Track II of ADAPCP. He attended eight group counseling sessions and some Alcoholics Anonymous meetings. He complied with the requirements and was released from outpatient treatment on 24 May 1995 with fair progress and a guarded prognosis.

On 25 July 1995, the applicant was command-referred to ADAPCP due to an incident that occurred in June 1995. The applicant denied that he was experiencing alcohol-related problems at the time, and claimed there was no evidence available to substantiate a problem. On 4 August 1995, the applicant returned to duty with no further action required.

On 3 November 1995, the applicant was again command-referred to ADAPCP following an incident where it was reported that alcohol contributed to his bad judgment. Based on the applicant's history of alcohol consumption, it was recommended that he maintain an appointment with a clinical consultant (an ADAPCP doctor) and that he get a lab slip so that he could have his blood drawn. He refused to get the lab slip and to maintain the appointment. On 28 November 1995, the applicant's commander was informed of the applicant's refusal to participate in the assessment portion of the program, to be seen by a clinical consultant, and to have his blood drawn.

On 6 December 1995, both a medical examination and a mental status evaluation cleared the applicant for separation.

The applicant's commander notified the applicant that he was being declared an alcohol abuse rehabilitation failure and that he was being recommended for discharge under the provisions of chapter 9, AR 635-200, with an honorable discharge (HD). The commander cited the basis his recommendation was his refusal to participate in the ADAPCP, after he was command-directed. On 18 December 1995, the applicant acknowledged notification.

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Undated correspondence shows that a legal representative advised the applicant of the basis for the contemplated action, its effects, and the rights available to him. The applicant acknowledged that he understood the ramifications of receiving such a discharge and waived a personal appearance and consideration of his case by an administrative separation board. He did not submit a statement in his own behalf.

On 21 December 1995, competent authority approved the recommendation and directed the issuance of a HD, by reason of alcohol abuse rehabilitation failure under the provisions of chapter 9, Army Regulation 635-200.

The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that, on 28 December 1995, he was separated with a HD under the provisions of chapter 9, Army Regulation 635-200, by reason of alcohol rehabilitation failure and assigned an RE code of RE-4. He had completed 14 years, 9 months, and 26 days of active military service. He had also completed 6 months and 4 days of prior inactive service. He had no recorded lost time.

The applicant applied to the Army Discharge Review Board (ADRB) in 2003, and he was notified by the ADRB that that board did not have the authority to change his RE code.

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. A member may also be separated if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Army policy states that an HD or a GD is authorized depending on the applicant’s overall record of service.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on the reason for discharge. AR 601-210 covers eligibility criteria, policies, and procedures for enlisting and processing into the RA and the eligibility for prior service applicants for enlistment. That chapter includes a list of Armed Forces RE codes and RA RE codes. An RE code of RE-4 applies to persons not qualified for continued Army service. Those individuals discharged under the provisions of chapter 9, AR 635-200, as a result of alcohol abuse rehabilitation failure are assigned RE-4 codes and are disqualified from further service. The disqualification is nonwaivable.

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. 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. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant was referred to the ADAPCP on three separate occasions. He violated the requirements of the program when he refused to participate in the assessment process and was declared an alcohol abuse rehabilitation failure and separated. He was properly separated and properly assigned an RE code of
RE-4.

3. The applicant has failed to provide an adequate rationale for removal of the disqualification which established the basis for his RE code. The assigned RE code was, and still is, appropriate.

4. 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

__rvo___ __rjo___ __ecp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085614
SUFFIX
RECON
DATE BOARDED	20031009
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0300
2.
3.
4.
5.
6.