RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060009885 


	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.


X

	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, in effect, a change to the Reentry (RE) code listed on his Separation Document (DD Form 214), dated 29 August 2000.

2.  The applicant states, in effect, that he believes he deserves a second chance to reenter the military.  He states that he has been married for the past seven years, his drinking has subsided for the last six years and he has held his current job for the past two years.  He claims that he is now much wiser, mature, and is able to take on the responsibilities of the military.  He further states that if given one more chance, it would allow him to prove to his family, the United States, and himself how mature he has become in the last six years.

3.  The applicant provides the following documents in support of his application: Self-Authored Statement, Third-Party Statement, and DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 29 August 2000.  The application submitted in this case is dated 
28 June 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.  The applicant’s records show he enlisted into the Regular Army and entered active duty on 18 February 1998.  He was trained in and awarded military occupational specialty (MOS) 92G (Food Service Specialist), and the highest rank he attained while serving on active duty was specialist (SPC).  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's record shows he was command referred to the Army Drug and Alcohol Prevention and Control Program (ADAPCP) and enrolled in Track II of the program by his unit commander on 5 April 2000.
5.  On 17 April 2000, the Clinical Director of the ADAPCP declared the applicant a rehabilitation failure based on his refusal to participate in treatment and his poor prognosis for long term abstinence.

6.  On 17 August 2000, the applicant was notified by his unit commander that separation action was being initiated on him under the provisions of chapter 9, Army Regulation 635-200, by reason of ADAPCP rehabilitation failure.  The unit commander cited the applicant's lack of progress and failure to participate in the ADAPCP as the basis for taking the action.  The unit commander also indicated that he was recommending the applicant receive a general, under honorable conditions discharge (GD) based on his various acts of failure to repair, lying to an Noncommissioned Officer (NCO), and overall inability to accomplish his mission, all of which stemmed from his abusive use of alcohol.  

7.  On 17 August 2000, the applicant acknowledged receipt of the separation action notification and after being advised of the basis of the contemplated separation action and the effects of a GD by legal counsel, he completed an election of rights, in which he waived his right to have representation by counsel and elected not to submit statements in his own behalf.

8.  On 18 August 2000, the separation authority approved the applicant's separation action, and directed he receive a GD.  On 29 August 2000, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was separated under the provisions of chapter 9, Army Regulation 635-200, by reason of alcohol rehabilitation failure.  It also confirms he received a GD, and that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of JPD and a RE code
of 4.  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated).  

9.  On 18 February 2004, the Army Discharge Review Board reviewed the applicant's case.  After full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses, the Board found that the length and quality of the applicant's service mitigated his misconduct.  The Board also found the characterization of service to be inequitable and voted to upgrade the characterization of service to honorable.  The Board determined that the reason for discharge was both proper and equitable, and voted not to change it.

10.  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 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.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JPD was the appropriate code for the applicant based on the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of chapter 9, Army Regulation 635-200, by reason of alcohol rehabilitation failure.  In addition, the SPD/RE Code Cross Reference Table establishes RE-4 as the proper reentry code to assign to Soldiers separated for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his RE Code upgraded in order to allow him the opportunity to reenter the Army and the documents he submitted were carefully considered.  However, this factor is not sufficiently mitigating to warrant granting the requested relief.  

2.  The evidence of record includes a properly constituted separation document that confirms the authority and reason for the applicant’s discharge, and the applicant does not dispute the basis for his discharge.  Further, all requirements of law and regulations were met, and that the rights of the applicant were fully protected throughout the separation process.

3.  By regulation, the RE-4 code assigned the applicant was the proper code to assign members separating under the provisions of chapter 9, Army Regulation 
635-200, for alcohol rehabilitation failure.  As a result, the RE-4 code assigned was and still is appropriate based on the authority and reason for his separation. 

4.  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.


5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 August 2000.  Therefore, the time for him to file a request for correction of any error or injustice expired on 28 August 2003.  He failed to 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

___X    __X__  __X__  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.




_____X____
          CHAIRPERSON




INDEX

CASE ID
AR20060009885
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/02/08
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
2000/08/29
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
Chapter 9 
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
110
2.

3.

4.

5.

6.