IN THE CASE OF:	

		BOARD DATE:	25 August 2009    

		DOCKET NUMBER:  AR20090003639 


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 of RE-4 be changed to an RE-3.

2.  The applicant states he was discharged due to alcohol and drug abuse rehabilitation failure.  He states he has now matured and wishes to reenter the U.S. Army.  He states that a year after he reported to Fort Wainwright, AK, he was notified that his grandfather had a serious, possible fatal heart condition.  He states that because of his concern for his grandfather he began drinking at an accelerated rate to deal with his emotions.  He states he attended the first class in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).   However, he states he never attended the second class due to illness.  He states that since his discharge he has not consumed alcohol.  He states he has held a steady job for 6 years and has moved from an entry-level position to a more senior position.  He states he has had no alcohol-related impairment on his driving record and has striven to better himself.  He states he has been married for over 3 years and recently bought a house.  He states he tries to give back to the community through coaching baseball and participating in charity events.  He states he has grown up since his discharge and wants a chance to right what was wrong and to serve honorably.

3.  The applicant provides, in support of his application, a letter from his State representative; a letter from his doctor; two letters from his place of employment; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 9 May 2001; and 15 pages from his military personnel record.
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 military personnel records show he enlisted in the Regular Army (RA) on 12 August 1999 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).

3.  The applicant's records contain six DA Forms 4856 (Developmental Counseling Form) for the period 25 October 2000 to 13 January 2001.

4.  DA Forms 4856, dated 25 October 2000 and 7 November 2000, show the applicant was counseled concerning Soldier responsibilities and failure to use his chain of command.

5.  DA Forms 4856, dated 8 November 2000, 21 November 2000, 26 December 2000, and 13 January 2001, show the applicant was counseled for being drunk on duty, drinking underage, failing to report for work on time, and failing to obey lawful orders.  On each of these occasions he was advised that continued misbehavior could result in his being discharged for unsatisfactory performance or misconduct.  He was also counseled on the four types of discharges: uncharacterized; honorable; general, under honorable conditions; and under other than honorable conditions, and the effects of each on his veterans benefits.

6.  A DA Form 4466-R (Patient Progress Report [PPR]) shows the applicant was released from the ADAPCP as an "Alcohol/Drug Abuse Rehab Failure."  The report shows his progress was poor, his commander's determination that his performance was unsatisfactory, and his commander's decision to terminate the applicant's treatment and to separation him from the service.



7.  The applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of chapter 9 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to his failure to complete the ADAPCP.  The commander further advised the applicant he was recommending that he receive a General Discharge Certificate.

8.  The commander advised the applicant of his rights to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge, and request his case be presented before a board of officers.

9.  In a statement, dated 17 April 2001, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 9 of Army Regulation 635-200 for alcohol rehabilitation failure.  The applicant acknowledged that he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him.  The applicant requested and he was provided counsel prior to waiving his rights.  The applicant did not submit a statement in his own behalf.  

10.  The applicant's commander recommended him for discharge under the provisions of chapter 9 of Army Regulation 635-200 due to his failure to complete the ADAPCP and that he be issued a General Discharge Certificate.

11.  The appropriate authority approved the recommendation for discharge under the provisions of chapter 9 of Army Regulation 635-200 and directed that the applicant be furnished a General Discharge Certificate.

12.  On 9 May 2001, the applicant was discharged under the provisions of chapter 9 of Army Regulation 635-200 due to alcohol rehabilitation failure.  He was assigned a separation program designator (SPD) code of "JPD" and assigned an RE code of RE-4.  He had completed 1 year, 8 months, and 28 days of active service this period that was characterized as under honorable conditions.    

13.  In a letter, dated 20 January 2009, the applicant's State senator states the applicant has taken responsibility for his actions and has worked tirelessly to better his life.  He offers his sincere recommendation of the applicant for re-entry into the Army.

14.  In a letter, dated 28 January 2009, the applicant's doctor stated the applicant had a problem with alcohol prior to being discharged from the Army and he has had no problems with alcoholism since.  The doctor first saw the applicant on
26 January 2009.  The doctor checked the applicant's liver function and could see no evidence that alcohol consumption played a significant role in his life at this point.

15.  In a letter, dated 15 January 2009, the Director of Operations of the applicant's employer stated the applicant has been employed by the company since February 2003 and he has excelled from his entry-level position as a soda and draft system repair technician to a refrigeration technician.  The Director stated that in being made aware of the applicant's previous alcohol problem in his youth, he has seen no indication of abuse that affects his ability to perform his job duties or affects his attendance at work.  The Director stated the applicant's work ethic is energetic and positive.

16.  In an undated letter from the Chief Executive Officer (CEO) of the company the applicant works for states the applicant gets along with customers, other employees, and management very well.  The CEO states they are glad to have the applicant as part of the team and he would think the applicant would make a good person to have with the National Guard.

17.  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 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.  

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the SPD code “JPD” as shown on the applicant’s 
DD Form 214 specified the narrative reason for discharge as “Alcohol Rehabilitation Failure."

19.  The SPD/RE Code Cross-Reference Table, dated March 2001, shows that the appropriate RE code for the SPD code of "JPD" is RE-4.

20.  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 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of Armed Forces RE codes.

21.  Paragraph 3-22 (Army Reentry Eligibility [RE] Codes) of Army Regulation 601-210 provides that an RE-4 applies to a person separated from their last period of service with a non-waivable disqualification.  These individuals are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

2.  The applicant was processed for separation due to alcohol rehabilitation failure.  Therefore, the SPD code "JPD" is correct.  According to the SPD/RE Code Cross-Reference Table the assignment of RE-4 for the applicant's SPD code of "JPD" is administratively correct.

3.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient changing a properly assigned RE code.  The ABCMR does not change records based solely on the passage of time.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  

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 that 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)                                         AR20090003639



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ABCMR Record of Proceedings (cont)                                         AR20090003639



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