RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  18 March 2008
	DOCKET NUMBER:  AR20070017645 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Gerald J. Purcell

Member

Ms. Rea M. Nuppenau

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, in effect, that his Reentry Eligibility (RE) Code 3 be changed so that he may enlist in the Army.

2.  The applicant states, in effect, that he does not believe his military records are wrong.  He admits to making mistakes and knows that he cannot change what happened.  He is now asking for forgiveness.  He is willing to start over and wants to help protect this great country.  The applicant further states that he was 18 years old, acted like a child by getting drunk and being stupid.  He does not do these things anymore.  Since his discharge, he has learned what it means to be a member of the military and to be an adult.    

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 21 January 1986, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 25 April 1986, the applicant was assigned for duty as an infantryman with the 1st Battalion, 39th Infantry Regiment, in the Federal Republic of Germany.

4.  On 25 February 1987, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for assault and being drunk and disorderly.  The punishment included reduction to private, pay grade E-2; a forfeiture of $172.00 pay per month for 1 month; and 14 days extra duty and restriction.

5.  On 1 May 1987, the applicant was referred by his commander for enrollment in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

6.  On 19 May 1987, the applicant was barred to reenlistment.  This action was based on the applicant’s poor attitude, lack of discipline, and constant need for supervision.  Other factual and relevant indicators of untrainability or unsuitability included the applicant’s below average skill qualification test scores in October 1986; drunk and disorderly behavior on 11 November 1986; malingering and substandard duty performance on 17 November 1986; disrespect to a noncommissioned officer on 5 December 1986; disrespect to his team leader on 15 December 1986; and missing formation on 11 February 1987.  The applicant received a counseling statement for each of these incidents.

7.  On 25 September 1987, the applicant was disenrolled from the ADAPCP due to unsatisfactory progress and poor potential for successful rehabilitation.

8.  On 5 October 1987, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 9, for failure to successfully complete the ADAPCP. 

9.  On 6 October 1987, the applicant accepted NJP for assault and being drunk and disorderly.  The punishment included reduction to private, pay grade E-1; a forfeiture of $329.00 pay per month for 2 months; and 45 days  extra duty and restriction.  The applicant did not appeal the punishment.

10.  On 19 October 1987, the bar to reenlistment was reviewed by the appropriate authority and it was not removed. 

11.  On 18 January 1988, the applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf.

12.  On 19 January 1988, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued an Honorable Discharge Certificate.  Accordingly, he was discharged under the provision of Army Regulation 635-200, chapter 9, for alcohol abuse-rehabilitation failure.  He was given a Separation Program Designator (SPD) Code of JPD and an RE Code of 3.




13.  Army Regulation 635-200 (Personnel Separations) 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.  At the time of the applicant’s separation an honorable or general discharge was authorized.

14.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 3 applies to persons separated from their last period of service with a waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

15.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and 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 upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 9, for alcohol abuse, rehabilitation failure.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 3 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The RE Code 3, establishing his ineligibility for enlistment/reenlistment without a waiver, was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of error or injustice.
4.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 3.  The applicant’s desire to continue in the service to his country is noted.  However, there are no provisions authorizing the change of an RE code for this purpose.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ RTD __  _RMN   _  __GJP __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




___    Richard T. Dunbar ___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.