RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060010324 


	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.


	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 reentry (RE) code of “4” that is shown in Item 27 of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to a RE code that will allow reenlistment.

2.  The applicant essentially states that when he spoke with the Judge Advocate General (JAG) office at Fort Huachuca, Arizona, they said that he would be able to reenter the military after 2 years as long as he was not in any alcohol-related trouble. 

3.  The applicant provides his DD Form 214 in support of this application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 3 November 2000, the date of his discharge from the Regular Army.  The application submitted in this case is dated 18 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 military records show that he enlisted in the Regular Army on 21 August 1997.  He completed basic and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  

4.  On 25 September 2000, the applicant was declared an alcohol rehabilitation failure after being arrested for driving under the influence on or about
22 September 2000.     

5.  On 3 November 2000, the applicant was separated under the provisions of Chapter 9, Army Regulation 635-200 (Enlisted Separations), by reason of alcohol rehabilitation failure with an honorable discharge.  He was credited with 3 years, 2 months, and 13 days of active military service.  His DD Form 214 shows that he was assigned a Separation Program Designator (SPD) code of “JPD,” and an RE code of “4.”
6.  There is no evidence in the applicant’s military records, and the applicant provided no evidence that he was told by the JAG office at Fort Huachuca, Arizona that he would be able to reenter the military after 2 years as long as he was not in any alcohol-related trouble. 

7.  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 Army Substance Abuse 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.  This chapter also states that, when not precluded by the limited use policy, offenses involving alcohol or drugs may properly form the basis for discharge proceedings.

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the United States 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 Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

9.  Army Regulation 635-5-1 (Separation Program Designator 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

10.  An SPD code of "JPD" applies to persons who are separated by reason of alcohol rehabilitation failure under the provisions of Chapter 9, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 
is the applicable RE code assigned for individuals separated by reason of alcohol rehabilitation failure.  An RE code of 4 indicates that the applicant was separated from his last period of service with a disqualification which cannot be waived and is ineligible for reenlistment.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of “4” shown in Item 27 of his
DD Form 214 should be changed to a RE code that will allow reenlistment.

2.  The applicant was enrolled in the Army Substance Abuse Program and was aware of the consequences of any action which would demonstrate any inability or refusal to participate in, cooperate in, or successfully complete such a program.  As a result of the applicant’s actions and after consultation with the drug and alcohol abuse counselor, the command declared the Soldier a rehabilitation failure.  The evidence of record establishes the fact that the applicant was properly counseled and afforded a reasonable opportunity to overcome his problems.  

3.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his failure to successfully complete the Army Substance Abuse Program, and the Board could find no basis upon which to change this reason.  

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 did not submit any evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 November 2000; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
2 November 2003.  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

____J___  ___LDS__  __RSV__  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.




_____Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20060010324
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070322
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20001103
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 9 
DISCHARGE REASON
ALCOHOL REHABILITATION  FAILURE
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
100.0300.0000
2.

3.

4.

5.

6.