IN THE CASE OF:	  

		BOARD DATE:	  21 May 2009

		DOCKET NUMBER:  AR20090000167 


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, correction of his name and reentry (RE) code. 

2.  The applicant states, in effect, that he changed his name and would like his now legal name recorded on his DD Form 214 (Certificate of Release or Discharge from Active Duty), that he would like a change to his RE-3 code, and that he would like to be issued a new DD Form 214 and honorable discharge certificate. 

3.  The applicant provides a name change court document, drug test document, and DD Form 214 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 record shows that he enlisted in the Regular Army and entered active duty on 15 May 1997.  The DD Form 4 (Enlistment/Reenlistment) document prepared during his enlistment processing lists the name he would now like changed.  The applicant's DA Form 2-1 (Personnel Qualification Record) also lists the name he would now like changed.  All the documents on file in his Official Military Personnel File (OMPF) also list the name recorded on his DD Form 4 and DA Form 2-1.

3.  On 23 June 2000, the applicant was discharged under the provisions of chapter 9, Army Regulation 635-200, by reason of drug rehabilitation failure, and received a general, under honorable conditions discharge (GD).  The DD Form 214 he was issued at the time lists the same name recorded on his DD Form 4, DA Form 2-1, and on all documents on file in his OMPF.  Item 26 (Separation Code) shows the applicant was assigned the Separation Program Designator (SPD) code JPC and Item 27 (Reentry Code) shows he was assigned an RE-3 code.  The SPD and RE codes were based on the authority and reason for his discharge.  

4.  On 18 July 2003, the Army Discharge Review Board (ADRB) voted to upgrade the applicant's GD to an honorable discharge (HD) based on his overall record of service.  The ADRB further concluded that the authority and reason for his discharge was proper and equitable and it voted not to change the reason for his discharge.  

5.  The applicant provides a court document that indicates he legally changed his last name on 24 February 2008.  He also provides a drug testing document completed by his employer, dated 19 December 2008, which showed he tested negative for drugs.  

6.  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 Abuse Prevention 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.  The separation authority may issue either an HD or GD based on the member's overall record of service.  


7.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (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-4 applies to persons who have a nonwaivable disqualification.  RE-3 applies to persons who have a waivable disqualification.  

8.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214.   Table 2-3 of the SPD code regulation identifies the SPD codes applicable to enlisted personnel and lists the SPD code of JPC as being applicable to members separated under the provisions of chapter 9, Army Regulation 635-200, by reason of drug rehabilitation failure.  The Department of the Army SPD/RE Cross Reference Table in effect at the time of the applicant's discharge indicated that RE-3 was the proper code to assign members separated under the provisions of chapter 9, Army Regulation 635-200 with an SPD code of JPC.  Under the current policy, RE-4 is the proper code to assign members separated by reason of drug rehabilitation failure with an SPD code of JPC.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the RE-3 code he was assigned upon his discharge should be upgraded was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant's discharge processing was accomplished in accordance with the applicable regulation, and that he was properly assigned the SPD code of JPC and RE code 3 based on the authority and reason for his discharge.  RE-3 was the proper code to assign under the policy in effect at the time; the current policy provides for assignment of an RE-4 code to members separated by reason of drug rehabilitation failure with a SPD code of JPC.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  

3.  The applicant' s request to correct his record and DD Form 214 to reflect the legal name change he obtained on 1 February 2008 was also carefully considered.  However, while it is understood why the applicant would want his record to reflect his current legal name, the evidence of record confirms he entered, served and was separated under the name listed on his DD Form 4, 
DA Form 2-1, DD Form 214, and all documents on file in his OMPF.  

4.  The Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  Absent any evidence that he has actually suffered an injustice based on the name recorded on his military records, there appears to be no compelling reason to compromise the integrity of the Army’s records to correct his name at this late date.  This Record of Proceedings, along with the application and supporting documents will be filed in his military record in order to provide clarity and to deal with any confusion that might arise regarding the difference in his name.  Filing the Board’s decisional document will also guarantee the historical accuracy of the applicant's military record regarding the name under which he served.

5.  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.




      _______ _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)                                         AR20090000167



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ABCMR Record of Proceedings (cont)                                         AR20090000167



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