IN THE CASE OF:	  

		BOARD DATE:	       16 October 2008

		DOCKET NUMBER:  AR20080011328 


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 to have his RE [Reentry Eligibility] Code changed from a 4 to a lower number.

2.  The applicant admits that he made mistakes while he was in the Army; but does not believe that he should still be paying them eleven years later.  He attributes his poor behavior to the fact that he was young and immature at the time he was in the Army.  The applicant proclaims that he learned from his mistakes and has turned his life around.  He states that he is trying to advance his career in law enforcement and also desires to join an Army Reserve unit as a military police officer.

3.  The applicant provides a self-authored statement as additional documentary evidence 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's record shows that he enlisted in the U.S. Army Delayed Entry Program (DEP) on 16 July 1996. He was discharged from the DEP, enlisted in the Regular Army (RA), and entered active duty on 20 August 1996.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  The highest rank he attained during this period of active duty was the grade of private first class (PFC)/pay grade E-3; however, he held the grade of private (PV2)/pay grade E-2 at the time of his discharge on 9 November 1999.

3.  Military Police Report Number 01511-99, shows the applicant was arrested and charged with drunken driving and impeding the flow of traffic on 27 March 1999 at Fort Bragg, North Carolina.

4.  DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code for Military Justice), initiated 7 April 1999 shows the applicant accepted nonjudicial punishment for the aforementioned offenses.  The punishment imposed was to reduction in grade to private (PV2)/pay grade E-2, extra duty for a period of 45 days, and forfeiture of $500.00 per month for a period of 2 months.  The forfeiture of pay was suspended and to be automatically remitted unless vacated before 13 October 1999.  This form also shows the suspended punishment was vacated on 13 May 1999 based on the applicant's failure to go at the time to his appointed place of duty.

5.  Headquarters, 51st Signal Battalion (Airborne), Fort Bragg, North Carolina, memorandum, dated 26 August 1999, Subject:  Separation Under Army Regulation 635-200 (Personnel Separations), Chapter 9-2, Alcohol or Other Drug Rehabilitation Failure shows the applicant's unit commander informed him that he was initiating action to separate him from the Army for alcohol rehabilitation failure.  The commander informed the applicant that although he was recommending the applicant receive an Honorable Discharge, the separation approval authority was not bound by his recommendation and may direct that his service be characterized as either honorable or general.  He advised the applicant of his rights to consult with counsel and/or civilian counsel at no expense to the Government, to submit written statements in his behalf, to obtain copies of the documents that would be sent to the separation authority, and his right to waive these rights.  The applicant acknowledged receipt and 
understanding of the notification by authenticating the 1st Endorsement to the commander's memorandum with his signature.
6.  Fort Bragg (FB) Form 1462 (Commander's Request for Psychiatric Evaluation), dated 19 July 1999, shows the applicant's commander requested that he receive a psychiatric evaluation.  The commander stated, in effect, the request was based on the fact that the applicant was being considered for separation from the Army under the provisions of Chapter 9 of Army Regulation 635-200 for failing the Alcohol Rehabilitation Program.  He further stated the applicant had been punished under the Uniform Code for Military Justice for several different offenses, continually displayed disrespect, and continued to miss accountability formations.

7.  Trial Defense Services (TDS) FB Form 9A (Separation Under the Provisions of Chapter 9 - When an Administrative Board is not Required), dated 1 September 1999, shows the applicant was advised by consulting counsel of the basis of the contemplated action to separate him from the Army because of alcohol abuse rehabilitation failure under the provisions of Chapter 9 of Army Regulation 635-200, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights.  The applicant also acknowledged his understanding that because he had less than six years of total active service and/or reserve military service, he was not entitled to have his case heard by an administrative separation board.  He further acknowledged his understanding that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  The applicant authenticated this form with his signature.

8.  The 2nd endorsement to Headquarters, 51st Signal Battalion (Airborne), Fort Bragg, North Carolina, memorandum, dated 26 August 1999, Subject:  Separation Under Army Regulation 635-200 (Personnel Separations), Chapter 
9-2, Alcohol or Other Drug Rehabilitation Failure shows the separation approval authority approved the applicant's discharge and directed that he be furnished an Honorable Discharge Certificate and that he would not be transferred to the Individual Ready Reserve.

9.  The applicant's DD Form 214 confirms that he was discharged accordingly.  Item 24 (Character of Service) of the DD Form 214 issued to the applicant upon separation shows his service was characterized as honorable.  Item 25 (Separation Authority) indicates he was separated under the provisions of chapter 9 of Army Regulation 635-200.  The applicant's DD Form 214 also shows that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) Code of JPD in Item 26 (Separation Code) and an RE Code of 4 in Item 27 (Reentry Code).  Item 28 shows his 
narrative reason for separation was alcohol rehabilitation failure.  The applicant authenticated this document with his signature on the date of his separation.  In effect, his signature is his verification that the information contained on the separation document, to include the authority and reason for his discharge, was correct at the time the DD Form 214 was prepared and issued.

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 Army Drug and Alcohol Prevention and Control Program (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.  However, an honorable discharge was required if restricted use information was used.

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.  It states, in pertinent part, that the SPD Code JPD is the appropriate code to assign to Soldiers separated under the provisions of Chapter 9 of Army Regulation 635-200 in for alcohol rehabilitation failure.  The SPD/RE Code Cross Reference Table indicates that RE Code 4 is the proper code to assign members separated with SPD Code JPD.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) 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.  RE Code 1 applies to persons completing their term of active service who are considered fully qualified to reenter the United States Army. RE Code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted.  RE Code 4 applies to persons separated from their last period of service who have a nonwaivable disqualification and are ineligible for reentry.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE Code should be changed so he will be eligible to reenter the Army was carefully considered and found to lack merit.

2.  Evidence shows that the applicant had numerous disciplinary infractions and failed to respond to both counseling and rehabilitation efforts.
3.  Evidence of record shows the applicant was recommended and approved for separation under the provisions of Chapter 9 of Army Regulation 635-200, by reason of his alcohol rehabilitation failure.  Evidence also shows the applicant was assigned the appropriate RE Code of 4 at the time of his discharge.  Army Regulation 601-210 provides that RE Code 4 applies to persons separated from their last period of service who have a nonwaivable disqualification and are ineligible for reentry.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgraded RE Code.

5.  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 and there is no basis for granting his request.

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)                                         AR20080011328



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ABCMR Record of Proceedings (cont)                                         AR20080011328



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