IN THE CASE OF:	  

		BOARD DATE:	        4 November 2008

		DOCKET NUMBER:  AR20080013715 


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 an upgrade of his reentry eligibility code (RE Code) from RE-4 to a more favorable code.

2.  The applicant states that he was referred to the Army Drug and Alcohol Prevention Control Program (ADAPCP) (now known as the Army Substance Abuse Program or ASAP) for alcohol treatment; however, he was not convinced that he had an alcohol problem until he was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for using alcohol.  At that point, he went back to the treatment center in the interest of addressing the issue and getting back on track with his military career, but was told that since he previously stated that he did not have an alcohol problem, the treatment center would not help him.  By then, his separation proceedings had begun and he was honorably separated.  However, he was never told in writing that he would be denied reentry into the Armed Forces.  He concludes that he was a good Soldier and that many of his family members served (or are serving) in the military, and that he would like to resume his military career.

3.  The applicant did not provide any additional documentary evidence in support of his 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 records show that he enlisted in the Regular Army for a period of 4 years on 24 March 2000.  He completed basic combat and advanced individual training and was awarded military occupational specialty 31U (Signal Support Systems Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records further show he was awarded the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant acts or achievements during his military service.

4.  On 1 May 2001, the applicant was referred by his commander at the Heidelberg Community Center for screening and evaluation after arriving at work intoxicated, and after undergoing a rehabilitation team meeting, a treatment plan was recommended.

5.  On 27 June 2001, in view of the applicant's inability to remain abstinent as evidenced by an alcohol-related incident while enrolled and another incident of arriving at work intoxicated, a second rehabilitation team meeting was held to reassess the applicant's willingness to comply with the treatment program.  During this meeting, the applicant reported no further desire to abstain from alcohol and that further rehabilitation efforts were unnecessary.  Consequently, the applicant was disenrolled from the program and was declared an alcohol and drug rehabilitation failure.

6.  On 29 August 2001, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being found drunk while on duty during physical training (PT) formation, on or about 10 July 2001; failing to go at the time prescribed to his appointed place of duty, on or about 10 July 2001; and twice disobeying a lawful order, on or about 23 July 2001.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $500.00 pay for 2 months (suspended until 28 January 2002); 45 days of extra duty, and 45 days of restriction.

7.  On 25 September 2001, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 9-2 of Army Regulation (AR) 635-200 (Personnel Separations) for being an alcohol and drug rehabilitation failure.  The immediate commander further recommended an honorable discharge.

8.  On 2 October 2001, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He elected not to submit a statement on his own behalf.

9.  On 2 October 2001, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 9-2 of AR 635-200 for alcohol abuse and rehabilitation failure.

10.  On 19 October 2001, the separation authority approved the applicant’s discharge under the provisions of chapter 9 of AR 635-200 by reason of alcohol abuse and rehabilitation failure and directed the applicant be furnished an honorable discharge.  Accordingly, the applicant was discharged on 29 October 2001.  The DD Form 214 he was issued confirms he was discharged with an honorable character of service.  This form further confirms that he completed a total of 1 year, 7 months, and 6 days of creditable active military service.  Item 27 (Reentry Code) of this DD Form 214 shows the entry "4."

11.  AR 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 the 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.

12.  AR 635-200 states, in pertinent part, 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.  AR 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.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes):

	a.  RE–1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be upgraded to a favorable code that would, in effect, allow him to reenter the Army.

2.  The evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was discharged under the provisions of chapter 9 of AR 635-200 due to alcohol abuse and rehabilitation failure.  Absent his alcohol abuse and subsequent rehabilitation failure, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his alcohol abuse and rehabilitation failure.  The only valid narrative reason for separation permitted under that paragraph is "alcohol abuse and rehabilitation failure” and the appropriate RE code associated with this discharge is RE-4.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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 has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.


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.


																XXX
      _________________________
                 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)                                         AR20080013715



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ABCMR Record of Proceedings (cont)                                         AR20080013715



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