IN THE CASE OF:	 

	BOARD DATE:	  3 June 2008

	DOCKET NUMBER:  AR20080002929 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

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

2.  The applicant states, in effect, that his RE-4 Code bans him from reenlisting in the military.  The applicant continues that he was discharged from the Army because of failing the Army Substance Abuse Program (ASAP).  The applicant continues that he voluntarily referred himself to the ASAP for help, but relapsed and his command deemed him non-retainable.  

3.  The applicant provides a self-authored letter, dated 25 January 2008, in support of this application.

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.  The applicant enlisted in the Virginia Army National Guard (VAARNG) for 8 years on 7 June 1995.  

3.  The applicant's record shows he was ordered to active duty for training during the period 4 October 1995 through 15 March 1996 and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  

4.  The applicant's DD Form 214, (Certificate of Release or Discharge from Active Duty), dated 15 March 1996, shows he was released from active duty for training.  

5.  On 28 August 1996, the applicant was notified that he failed the mandatory urinalysis test which indicated the presence of cocaine.

6.  On 24 September 1996, the applicant's commander notified him that he was being recommended for discharge under the provisions of NGR 600-200 (Military Separation), chapter 8, paragraph 8-26q (3), for acts or patterns of misconduct.  The applicant's commanding officer recommended that he receive a general discharge under honorable conditions.  The applicant acknowledged receipt of the notification and, after consulting with counsel, elected to submit a statement in his own behalf.

7.  On 22 April 1997, the Judge Advocate of the VAARNG, reviewed the applicant's separation action, the applicant's statement of remorse for his actions, letters of support submitted by his counselor/doctor, employer, grandfather, and a fellow staff sergeant.  The Judge Advocate of the VAARNG, determined that the recommendation for discharge of the applicant under the provisions of NGR 600-200, chapter 8, paragraph 8-26q (3), for acts or patterns of misconduct is legally sufficient and meets the requirement of Army Regulation 135-178 (Enlisted Administration Separation).  

8.  The Adjutant General of Virginia, after reviewing the separation action, directed that the applicant be discharged from the VAARNG and Reserve of the Army as a result of his misconduct associated with a positive urinalysis test indicating the presence of cocaine.  The Adjutant General also directed that the applicant receive an Honorable Discharge Certificate for his current term of service.





9.  The applicant's NGB Form 22 (Departments of the Army and the Air Forces National Guard Bureau Report of Separation and Record of Service) with an effective dated of 6 June 1997, shows he was honorably discharged from the VAARNG under the provisions of National Guard Regulation (NGR) 600-200, paragraph 8-26q, due to acts or patterns of misconduct.  His NGB Form 22 shows he completed 2 years of net service this period and he was furnished an RE-3 code.  

10.  The applicant's military record shows that he enlisted in the Regular Army on 26 March 2001.  The applicant's record shows that he completed his military training and was awarded (MOS) 68W (Health Care Specialist).  The applicant's record also shows he reenlisted in the Regular Army on 13 April 2005 for a period of 6 years.  

11.  On 24 August 2005, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using steroids and possessing steroids a Scheduled III controlled substance, wrongfully using a government owned vehicle for non-official purposes and willfully disobeying a lawful order given by a noncommissioned officer not to go to the local distillery, consume alcohol, and return to compound by curfew.  His punishment consisted of reduction to the rank of specialist/pay grade (E-4) and 45 days of extra duty.

12.  On 3 October 2006, a memorandum for the record was submitted by the ASAP, Certified Substance Abuse Counselor to the applicant's unit commander.  The memorandum shows that the applicant had been initially assessed on 22 June 2006, as a level 1.0 cocaine abuser and entered ASAP as an outpatient. The memorandum also shows that a few weeks later the applicant's condition was reassessed at a level 2.5 cocaine abuser.  The memorandum shows that the applicant had to be admitted to the critical care treatment facility of the Tri-Service Addiction Recovery Facility (TRISARF) on 20 July 2006.  The summary concluded that after 6 weeks of treatment the applicant was discharged on 24 August 2006, from the TRISARF where he appeared to have made some positive changes in his life, and had taken advantage of his opportunity to be in treatment.

13.  On 10 October 2006, the unit commander notified to applicant of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9 for alcohol or other drug abuse rehabilitation failure.  He was advised of his rights.  The unit commander indicated that the reason for his proposed action is due to being a TRISARF failure as of 24 August 2006 for not complying with his treatment contract as a result of disrespecting a noncommissioned officer.

14.  The applicant acknowledged notification of the pending separation action.  The applicant then declined consultation with military legal counsel, and did not submit statements in his own behalf.

15.  On 12 October 2006, the separation authority approved discharge under the provisions of Army Regulation 635-200, chapter 9 for Alcohol Rehabilitation Failure with issuance of a general under honorable conditions discharge.

16.  On 31 October 2006, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 9 for Alcohol Rehabilitation Failure with issuance of a general under honorable conditions discharge.  He completed 5 years, 7 months, and 5 days of active military service with 5 days of lost time.  The DD Form 214 also shows that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of JPD [Alcohol Abuse Rehabilitative Failure, Army Regulation 635-200, chapter 9] and an RE code of RE-4. 

17.  The applicant's letter shows that he would like to rejoin the Army and is not proud of his military misconduct.  The applicant continues that he was separated with a general under honorable discharge and issued a reenlistment code or RE-4.  The applicant continues that the RE-4 Code means he is banned from reenlistment.  The applicant adds that he entered treatment himself and also received additional help from his command before he was discharged.  The applicant continues that if he could turn the clock back he would make better decisions.  The applicant adds that he was in the Army for 6 years and accomplished a lot during his military career.  The applicant states that as a husband and father of four, he has continued his education, served in Bagdad, has been employed over 7 months and is also a proud American.  The applicant concludes that the Army has been short on attaining their quota for the last few months, and allowed previously convicted felons to join with the right waivers.  The applicant continues that based on his "good" accomplishments he would like to serve his country and get back what he lost.

18.  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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US 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 RA/RE codes.  The regulation states that RE–3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE-4 code applies to persons who are separated from their last period of service with a non-waivable disqualification.  This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more Active Federal Service (AFS).  

19.  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.  It states, in pertinent part, that the SPD code of JPD is the appropriate code to assign to Soldiers who separated under the provisions of chapter 9, Army Regulation 635-200, for Alcohol Abuse Rehabilitative Failure.  The SPD/RE Code Cross Reference Table included in the regulation stipulates that the RE code assignment will be based on the Department of the Army directive authorizing separation.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his reentry (RE) code should be amended from RE 4 to RE 1 was carefully considered and determined to be without merit.  

2.  Evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

3.  The evidence of record shows that the applicant was discharged for Alcohol Rehabilitation Failure.  His statements were reviewed carefully.  However, he has failed to show through the preponderance of the evidence submitted or the evidence of record that the characterization of service and the narrative reason for separation are in error or unjust.

4.  Additionally, the applicant’s assigned RE code of RE-4 was valid when it was assigned and it remains valid based on the authority and reason for his separation.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ___X____  ___X____  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

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.



       _   ___X____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080002929



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ABCMR Record of Proceedings (cont)                                         AR20080002929



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