RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            26 SEPTEMBER 2006
      DOCKET NUMBER:   AR20060005065


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Marla Troup                   |     |Chairperson          |
|     |Mr. Chester Damian                |     |Member               |
|     |Mr. Edward Montgomery             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his reason and authority for separation and
his reentry eligibility (RE) code be changed.

2.  The applicant states that during his enlistment he was under a lot of
pressure in his personal life and that it filtered over into his job
performance.  He states that when his job performance started to suffer, he
reacted negatively.  He states that he was arrested for driving under the
influence (DUI), his marriage was falling apart, and he lost a loved one in
the 11 September 2001 terrorist attacks.  He states that at the time that
his unit went into an alert status, he was also required to attend weekly
counseling to help him through his problems.  He states that his problems
got worse; that he chose to refuse the help that the Army was willing to
give; that he declined orders to go back overseas; and that he forced his
commander into a position to have him separated from the Army.  He states
that it has been 3 years, and that he is now divorced and working with
military contractors.  He concludes by stating that he believes that his
career ended prematurely and he would like the chance to redeem himself and
resume a career in the military.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 April 2002.  The application submitted in this case is
dated 16 March 2006.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.





3.  On 11 June 1996, he enlisted in the United States Army Reserve (USAR),
in Baltimore, Maryland, for 8 years, in the pay grade of E-1.  He enlisted
in the Regular Army (RA) for 4 years on 26 July 1996, and he successfully
completed his training as a communications signal collections and
processing analyst.  He reenlisted in the Army for an additional 4 years on
18 August 1999.

4.  On 2 August 2001, the applicant was furnished a Memorandum of Reprimand
(MOR) for driving a vehicle while intoxicated.  In the MOR, his commanding
officer stated that his actions exhibited a serious lack of judgment and a
complete departure from the standards expected of someone of his rank and
position.  The commander stated that the applicant's behavior had caused
him to question whether or not he could continue to serve as a Soldier in
the United States Army. In the MOR, the commander informed the applicant of
his intent to file the MOR in the performance portion of his Official
Military Personnel File (OMPF).  The applicant acknowledged receipt of the
memorandum and he elected not to submit matters in response to the MOR.

5.  On 7 August 2001, the applicant's commander was notified that the
applicant's DUI incident was the second major alcohol related incident that
he had committed.  The commander was informed that the applicant's previous
incident involved spousal abuse during a time when he was stationed in
Germany.

6.  On 6 September 2001, the applicant's commander directed that the MOR be
filed permanently in his OMPF.

7.  On 12 February 2002, a Synopsis of Army Substance Abuse Program (ASAP)
Participation was completed on the applicant by an ASAP counselor.  In the
synopsis the counselor stated that the applicant was evaluated on 22 June
2001 as a result of driving while intoxicated.  The ASAP counselor stated
that the clinical and medical evaluation did not reveal an alcohol-related
diagnosis, and that a telephonic command consultation was made that same
day with the recommendation that the applicant be screened, not enrolled,
and referred to Alcohol and Drug Abuse Prevention Training.  The counselor
stated that the command notified the ASAP staff that the applicant had an
alcohol related incident while he was stationed in Germany, and that this
additional information and subsequent interview resulted in a diagnosis of
alcohol abuse.  The ASAP counselor stated that on 20 August 2001, a
rehabilitation team meeting was held and the applicant was enrolled in
outpatient treatment.  The ASAP counselor


stated that on 26 November 2001, the ASAP staff was notified that the
applicant had tested positive on a rehabilitation urinalysis, and that on
7 December 2001, a rehabilitation team meeting was held to discuss the
applicant's treatment needs and he was offered more intensive treatment
which he declined.  The ASAP counselor stated that he was also offered the
opportunity to reclassify, which he declined.  The counselor stated that
the applicant's duty performance, personal conduct, motivation, two alcohol
related incidents, one positive urinalysis for Tetrahydrocannabinol (THC),
and declination for reclassification made his duty performance rating and
personal conduct unsatisfactory.  The ASAP counselor stated that given
these factors, termination of the applicant's service was recommended and
the command declared the applicant a rehabilitation failure.

8.  On 26 March 2002, the applicant was notified that he was being
recommended for discharge under the provisions of Army Regulation 635-200,
chapter 9, due to alcohol and other drug abuse rehabilitation failure.  The
commander cited his inability or unwillingness to overcome his substance
abuse problems despite being offered every opportunity to do so with the
help of the ASAP, as a basis for his recommendation.  The applicant
acknowledged receipt of the notification and, after consulting with
counsel, he waived his rights and he opted not to submit a statement in his
own behalf.

9.  The recommendation for discharge was approved by the appropriate
authority.  Accordingly, on 19 April 2002, the applicant was discharged
under honorable conditions, under the provisions of Army Regulation 635-
200, chapter 9, due to alcohol rehabilitation failure.  He had completed 5
years, 8 months and 24 days of net active service and he was furnished an
RE-4 code.

10.  On 11 September 2002, the Army Discharge Review Board upgraded the
applicant's discharge from under honorable conditions to fully honorable.

11.  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 Alcohol and Drug Abuse
Prevention Control Program 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.




12.  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 RA and the USAR.  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.  An RE-4 code applies to a person with a non-waivable
disqualification.

13.  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.  The United States Court of Appeals,
observing that applicants to the ADRB are by statute allowed 15 years to
apply there, and that this Board's exhaustion requirement (Army Regulation
15-185, paragraph 2-8), effectively shortens that filing period, has
determined that the 3-year limit on filing to the Army Board for Correction
of Military Records (ABCMR) should commence on the date of final action by
the ADRB.  In complying with this decision, the ABCMR has adopted the
broader policy of calculating the 3-year time limit from the date of
exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated and assigned an RE code in accordance with
the applicable regulation.

2.  There appears to be no basis for removal or waiver of those
disqualifications which established the basis for the reentry eligibility
code.

3.  The applicant's contentions have been noted.  However, it is not
sufficiently mitigating to warrant the relief requested.  The evidence of
record shows that he tested positive for THC while he was participating in
the alcohol and drug abuse program.  His ASAP counselor stated that his
duty performance, personal conduct, motivation, two alcohol related
incidents, one positive urinalysis; and declination for reclassification
made his duty performance rating and personal conduct unsatisfactory.  He
was recommended for separation due to alcohol rehabilitation failure and he
was properly assigned an RE code in accordance with his reason and
authority for separation.

4.  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.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 11 September 2002.
 As a result, the time for the applicant to file a request for correction
of any error or injustice to this Board expired on 10 September 2005.
However, the applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MT __  ___CD __  ___EM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ______ Maria Troup________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005065                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060926                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |20020419                                |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 9                        |
|DISCHARGE REASON        |Alcohol Rehab Failure                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  1021 |100.0000/ADMINISTRATIVE MATTERS         |
|2.  4                   |100.0300/CHANGE OF RE CODE              |
|3.  189                 |110.0000/SEPARATION DOCUMENT            |
|4.  191                 |110.0200/REASON AND AUTHORITY           |
|5.                      |                                        |
|6.                      |                                        |


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