IN THE CASE OF:	  

		BOARD DATE:	        11 DECEMBER 2008

		DOCKET NUMBER:  AR20080015296 


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 that his reentry eligibility (RE) code on his DD Form 214 be changed from a "4" to a code that will allow him to again enlist in the Army.

2.  The applicant states that at the time he was young and immature.  He further states that he believes that his duty in life is to serve his country and he now resents the way he acted when he was overseas.  He also states that he had a drinking problem then and that he has since completed an alcohol rehabilitation class and has had no issues with drinking since 2002.  He continues by stating that he believes his heart belongs to the flag and that he should continue to serve.  He goes on to state that he realizes that he had a problem, but he was 19 years of age in a foreign country with no age limit and nothing to do.  He was irresponsible with his actions and he has paid for them.  He is now a changed and better man with a beautiful wife and two beautiful children.

3.  The applicant indicates that he provides a certificate of completion of a 26-day alcohol and drug education and prevention program; however, it was not received with 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 was born on 24 December 1973 and enlisted in the Maryland Army National Guard (MDARNG) on 25 September 1992.  He completed his training as a light weapons infantryman and continued to serve in the MDARNG until he was honorably discharged on 30 November 1993 to enlist in the Regular Army.

3.  On 1 December 1993, he enlisted in the Regular Army for a period of 3 years and assignment to Korea as a light weapons infantryman.  He was transferred to Korea on 4 January 1994 for assignment to Company C, 1st Battalion, 503d Infantry Regiment, 2d Infantry Division.

4.  On 30 July 1994, the applicant's commander referred him to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for assessment.  He was enrolled in Track II of the program.

5.  On 2 August 1994, nonjudicial punishment was imposed against the applicant for disobeying a lawful command from a superior commissioned officer and two specifications of being drunk and disorderly.  His punishment consisted of a reduction to the pay grade of E-2 (suspended until 3 January 1995), a forfeiture of pay (suspended until 3 January 1995), extra duty, and restriction.

6.  On 20 November 1994, after consulting with the ADAPCP counselor, the commander declared him a rehabilitation failure. 

7.  On 13 January 1995, the applicant's commander initiated action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, for alcohol rehabilitation failure.  After consulting with defense counsel, the applicant waived his right to appear before an administrative separation board.

8.  On 21 January 1995, the appropriate authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions at Fort Lewis, Washington, on 9 February 1995 under the provisions of Army 
Regulation 635-200, chapter 9, due to Alcohol Rehabilitation Failure.  He had served 1 year, 2 months, and 9 days of his current enlistment and was 21 years of age at the time.  He was issued an RE code of "4."

10.  A review of the applicant's records shows that he was counseled on at least 13 occasions for a variety of issues including excessive drinking, assault, being drunk on duty, financial responsibility (failure to pay debts), failure to maintain his living area to required standards, failure to go to his place of duty, failure to follow instructions, lack of motivation, and his disenrollment from the ADAPCP.

11.  On 30 May 2001, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB determined that the applicant's chain of command had used limited-use evidence during the discharge proceedings and therefore the applicant was entitled by regulations to receive an honorable discharge.  However, the ADRB also determined that his narrative reason for separation and RE code were correct and voted not to change them.  Accordingly, he was issued an Honorable Discharge Certificate and a new DD Form 214.

12.  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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. 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.

13.  RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification.  The applicable regulations direct that an RE code of "4" be issued for a separation program designator of "JPD" which indicates separation for Alcohol Rehabilitation Failure.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the action of the ADRB to upgrade the applicant’s general discharge to an honorable discharge, the ADRB did not change the narrative reason for his discharge or his separation code.

2.  The applicant was issued an RE code of "4" based on the narrative reason for his discharge, which was based on his alcohol rehabilitation failure.  The applicant has failed to show through the evidence submitted and the evidence of record that his RE code is incorrect or that there is sufficient reason to warrant a change of his narrative reason for separation and RE code.

3.  While the applicant is to be commended on his rehabilitation and his desire to again serve his country, that is not a sufficient basis to change a valid document to reflect information that is not correct.  The narrative reason for separation and his RE code on his DD Form 214 correctly reflect the basis for his discharge and he has failed to show that such is not the case.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20080015296





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ABCMR Record of Proceedings (cont)                                         AR20080015296



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