DOCKET NUMBER:  AR20090005008 


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 reconsideration of his previous request to change the narrative reason for separation, separation authority, and reentry eligibility (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, that the Board's previous assessment that he did not request counsel is correct because officials at the legal office told him that he did not need them at that time because he was entitled to a board hearing due to the fact that he had over 6 years of service.  However, despite the fact that he requested a board hearing, he never received one.  He continues by stating that he believes that the mistake was made in computing his service and that his chain of command was not aware that he had over 6 years of service.  He states that he is aware that he made some serious mistakes and he asks the Board to consider that he voluntarily went to his command to request help for his substance abuse problem.  He also states that he has learned from his mistakes and desires a second chance.

3.  The applicant provides a copy of his separation election statement and a copy of his Enlisted Record Brief.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080002929 on 3 June 2008.
2.  The applicant was born on 20 April 1977 and initially enlisted in the Virginia Army National Guard (VAARNG) on 7 June 1995.  He served in the VAARNG as a medical specialist until he was discharged under honorable conditions on 6 June 1997 under the provisions of National Guard Regulation 600-200 (Army National Guard Enlisted Personnel Management), paragraph 8-26q, due to acts or patterns of misconduct.  The applicant had a positive urinalysis for cocaine.

3.  The applicant enlisted in the Regular Army on 26 March 2001 for duty as a medical specialist, assignment to Fort Hood, Texas, and a cash enlistment bonus.  At the time of his enlistment he indicated that he had experimented with marijuana one time.  He was transferred to Fort Hood for his initial assignment and during that assignment he deployed to Iraq for 5 months.

4.  He was promoted to the pay grade of E-5 on 1 December 2004.  On 13 April 2005, he reenlisted for a period of 6 years and a selective reenlistment bonus.

5.  On 30 August 2005, nonjudicial punishment was imposed against the applicant for the wrongful use and possession of steroids, a Schedule III controlled substance, for the wrongful use of a government vehicle, and for disobeying a lawful order from a superior noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-4 and extra duty for 45 days.

6.  The applicant was transferred to Hawaii on 23 November 2005 and on 24 June 2006 he was assessed for an alcohol/drug problem.  He was originally diagnosed with cocaine abuse and enrolled in the Army Substance Abuse Program (ASAP).  After a few weeks in the program he relapsed on cocaine and was admitted to an intensive outpatient treatment program on 20 July 2006 at the Tri-Services Addiction Recovery Facility at Tripler Army Medical Center.  He again relapsed within the first week and was placed on a critical status.  The applicant was involved in an incident in which he was disrespectful to a superior noncommissioned officer and was discharged from the program.  He subsequently returned to the ASAP for aftercare.

7.  On 10 October 2006, the applicant's commander initiated action to discharge him from the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 9, due to alcohol and other drug abuse rehabilitative failure.  The applicant was also advised that he was entitled to a hearing before an administrative separation board if he had 6 or more years of total active and reserve military service.

8.  On 12 October 2006, after consulting with counsel, the applicant elected a personal appearance before and consideration of his case by an administrative separation board.

9.  On 13 October 2006, the appropriate authority approved the recommendation for separation and directed that he be discharged under honorable conditions (general discharge).

10.  On 31 October 2006, the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-200, chapter 9, for alcohol rehabilitation failure.  He had served 5 years, 7 months, and 5 days of active service during his current enlistment and had 5 months and 12 days of prior active service.  He was issued a separation code of "JPD" and an RE code of "4."

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 of this regulation contains the authority and outlines the procedures for discharging individuals because of alcohol and/or drug abuse.  A member may be separated because of inability or refusal to participate in or successfully complete a rehabilitation program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  The Soldier is entitled to request a hearing before an administrative separation board if he/she has 6 or more years of total active and reserve military service.  Characterization of service will be determined solely by the Soldier’s military record that includes the Soldier’s behavior and performance during the current enlistment.  An honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  A general discharge is a separation from the Army under honorable conditions.  It is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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 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.



13.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides that a separation code of "JPD" will be issued to enlisted personnel separated from the service under the provisions of Army Regulation 635-200, chapter 9, due to alcohol rehabilitation failure.  A separation code of "JPC" is issued for drug rehabilitation failure.  An RE code of "4" is issued for both "JPC" and "JPD" separation codes.  A separation under "Secretarial Authority" under the provisions of Army Regulation 635-200, paragraph 5-3, requires that a separation code of "JFF" be issued.  The RE code is determined based on the applicant's record of service and the circumstances surrounding the individual's discharge.

14.  An RE code of 4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification such as the commission of serious offenses which includes the abuse of illegal drugs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his narrative reason, authority for his separation, and RE code should be changed because he was not afforded appearance before an administrative separation board has been noted and appears to have some merit.

2.  The applicant was notified that he was entitled to a personal appearance before an administrative separation board if he had 6 or more years of active and Reserve service and he elected to appear before an administrative separation board.

3.  However, for reasons not explained in the available records, he was not afforded a separation board and the convening authority directed that he be discharged under honorable conditions the day after he had made his election, despite the fact that the applicant had over 6 years of active service, not to mention his Reserve service.

4.  The applicant's contention that he did not submit matters in his own behalf because his counsel told him that he would receive a board also makes sense and is a reasonable explanation given the facts in this case.

5.  Accordingly, he was denied the opportunity to submit matters of mitigation to the administrative separation board in hopes of receiving an honorable discharge.



6.  Furthermore, the applicant was incorrectly discharged due to "alcohol rehabilitation failure" and was issued a separation code of "JPD" when, in fact, he should have been discharged for "drug rehabilitation failure" with a separation code of "JPC."  In either event, he would have received an RE code of "4."

7.  Therefore, since the applicant was not afforded an opportunity to appear before an administrative separation board, it would be in the interest of justice to correct his records to show that he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-3, due to "Secretarial Authority" with a separation code of "JFF."

8.  Inasmuch as the best discharge the applicant could have hoped for under the circumstances was an honorable discharge, and he would have received an RE code of "4" had everything been processed in accordance with the applicable regulations, the RE code should remain as a "4" given the fact that the applicant had a history of cocaine abuse prior to his enlistment in the Regular Army as evidenced by his discharge from the VAARNG based on a positive urinalysis for cocaine.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___x____  ____x___  _____x__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20080002929, dated 3 June 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-3, due to "Secretarial Authority" with a separation code of "JFF."



2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his RE code.



      ____________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)                                         AR20090005008



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ABCMR Record of Proceedings (cont)                                         AR20090005008



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