IN THE CASE OF:	

		BOARD DATE:	9 July 2009  

		DOCKET NUMBER:  AR20090003516 


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 discharge be changed to a medical separation with benefits; and that item 26 (Separation Code) and item 27 (Reentry Code (RE code)) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 11 May 1993 be changed.  

2.  The applicant states, in effect, that he is trying to reenter the Army and that the separation and RE codes preclude him from doing so.  The applicant states that he does not use alcohol at all and has not used it for many years.  His military problems became paramount during the last few months of his service.  He learned that his immediate supervisor at the time was having a sexual affair with his wife and became the father of his son.  The applicant states that he began to drink but voluntarily entered the Army's Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).    

3.  The applicant further states that he decided to terminate his military service early in an attempt to salvage what remained of his marriage.  In order to facilitate and expedite his release he voluntarily withdrew from the ADAPCP that resulted in him receiving the separation code "JPD."  The applicant continues that at the time his commander indicated that his honorable discharge would not be a detrimental implication from the separation code indicating his failure to complete the ADAPCP, but it certainly has damaged him by preventing him from reentering the military.  



4.  The applicant provides:

	a.  his DD Form 214;

	b.  an Honorable Discharge Certificate, with the period ending 8 August 1989;

	c.  a Certificate of Appreciation, dated 21 February 1986; a Certificate of Recognition, dated 26 January 1988; and a undated Certificate of Commendation; 

	d.  a Medical Noncommissioned Officer (NCO) Course completion certificate, dated 7 September 1988;

	e.  a Primary Leadership Development Course completion certificate, dated 
8 December 1988; 

	f.  a DA Form 2823 (Sworn Statement), dated 6 October 1991;

	g.  a letter from Clements and Drevo, Attorneys at Law, dated 12 August 1994;

	h.  a two-page Performance and Development Summary from the Home Depot, dated 29 January 2009; 

	i.  a copy of a Home Depot news article, dated 27 October 2008 titled "Exercising great service in Colorado"; and 

	j.  three Army Achievement Medal certificates and two Army Commendation Medal certificates.

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 Regular Army on 23 November 1983.  He successfully completed basic combat training, advanced individual training, and he was awarded military occupational specialty 91B (Medical Specialist).  The applicant was honorably discharged on 9 March 1987 and immediately reenlisted on 10 March 1987.  He was promoted to the rank and grade of sergeant 
(SGT)/E-5 on 15 September 1988.

3.  On 28 January 1993, the applicant self-referred himself into the ADAPCP at Fort Stewart, Georgia, requesting immediate treatment for alcohol abuse .  He was enrolled in the Track II Program for rehabilitation purposes and agreed to a treatment plan that was developed which committed him to the following:  1) total abstinence from all alcohol; 2) attendance of and participation in weekly group therapy sessions; and 3) attendance of a minimum of two Alcoholic Anonymous support group meetings per week.  In addition, the applicant was afforded an opportunity to consult with the ADAPCP staff and the unit commander. 

4.  On 24 March 1993, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9 for Alcohol or Other Drug Abuse-Rehabilitation Failure.  The commander stated, "In consultation with the ADAPCP rehabilitation team, I have determined that further rehabilitation efforts are not practical."  The commander stated that the applicant was declared a rehabilitation failure as of 17 March 1993.  The commander further stated that the applicant had a history of alcohol abuse and rehabilitation.  The commander indicted that applicant was enrolled in ADAPCP Track II on two previous occasions at Fort Campbell, Kentucky, in 1986 and Fort Riley, Kansas, in 1986 and 1988.

5.  On 27 March 1993, the applicant received two armed forces traffic tickets for drunken driving and defective headlight.

6.  By memorandum dated 1 April 1993, the applicant's ADAPCP Clinical Director advised the applicant's company commander that the applicant's enrollment in the treatment program was unsatisfactory.  The Clinical Director further stated that the applicant's progress was unsatisfactory, and he had made minimal changes.  The Clinical Director continued that the applicant had continued abuse of alcohol during rehabilitation efforts in Track II.  

7.  A DA Form 4187 (Personnel Action), dated 20 April 1993, shows that the applicant's commander approved the applicant's reduction to the rank and pay grade of specialist (SPC)/E-4 effective 20 April 1993.

8.  On 21 April 1993, the applicant was notified by his company commander that he was being processed for separation under the provisions of chapter 9 of Army Regulation 635-200 for alcohol abuse rehabilitation failure. 

9.  The applicant was further advised that he was being recommended for an honorable discharge, due to alcohol abuse rehabilitation failure.  He was also advised that this action was suspended for 7 days to give the applicant the opportunity to exercise the following rights:  

   a.  "Request appointment of military counsel;
	
b.  submit a statement on his behalf; or

	c.  waive the foregoing rights in writing or by declining to reply within 7 days."

10.  On 21 April 1993, the applicant acknowledged that he was advised of the basis for his separation action under the provisions of Army Regulation 635-200. The applicant acknowledged that he was counseled by appropriate counsel and that he did not wish to have his case heard by an administrative separation board.  The applicant also indicated that he did not provide statements on his own behalf.

11.  On 11 May 1993, the applicant was discharged under the provisions of chapter 9, Army Regulation 635-200, for Alcohol Abuse-Rehabilitation Failure.  The applicant was issued an Honorable Discharge Certificate.  Records show that the applicant had completed a total of 9 years, 5 months, and 19 days of creditable active service at the time of his separation.  His DD Form 214 shows in item 26 shows the entry "JPD"; item 27 shows the entry "3"; and item 28 (Narrative Reason for Separation) shows the entry "ALCOHOL ABUSE - REHABILITATION FAILURE."

12.  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 had been referred to 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.  



13.  Chapter 5 of Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), in pertinent part, states that Soldiers who are rehabilitation failures will be processed for administrative separation when the unit commander, in consultation with the ADAPCP staff, determines that further rehabilitation efforts are not practical and that rehabilitation is a failure.

14.  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.  The SPD code of JPD was the appropriate code for the applicant based on the guidance provided in this regulation for Soldiers separating under the provisions of chapter 9, Army Regulation 635-200 by reason of alcohol abuse – rehabilitation failure.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-3 as the proper reentry code to assign to Soldiers separated under the provision of the chapter 9 at that time.  

15.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-8 of the regulation states that RE-3 applies to a Soldier who is not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.

16.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he needs his RE code changed on his DD Form 214 in order to reenter military service.  However, the ABCMR does not change RE codes solely to allow former Soldiers to reenter military service.  

2.  There is no evidence and the applicant has not provided evidence that shows his spouse was the cause of his drinking problems.  He had the opportunity to raise this issue at an administrative board and waived the opportunity to do so.  He had an opportunity to make a statement wherein he could have raised the issue during his separation process and failed to do so.  In addition, evidence of record shows that the applicant had a history of alcohol abuse during his military service.  Therefore, there is no basis for this argument.

3.  Evidence of record shows the applicant was involuntarily separated for Alcohol Abuse-Rehabilitation Failure.

4.  Evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations, to include the 
RE-3 code assignment.  Lacking independent evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the assigned RE-3 code was appropriate. 

5.  However, this does not mean that the applicant has been completely denied the opportunity to enlist.  Since he is eligible to apply for a waiver, he has the option of visiting his local recruiting station and consulting with recruiting personnel who are required to process a waiver 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)                                         AR20090003516





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ABCMR Record of Proceedings (cont)                                         AR20090003516



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