IN THE CASE OF:	  

		BOARD DATE:	      18 AUGUST 2009

		DOCKET NUMBER:  AR20090005887 


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, that his general discharge under honorable conditions be upgraded to a fully honorable discharge and correction of his Reenlistment Eligibility (RE) code from a 4 to a more favorable code.

2.  The applicant states, in effect, that he was discharged from the Army due to no fault of his after he was referred to the Alcohol and Drug Abuse Prevention and Control Program currently known as the Army Substance Abuse Program (ASAP).  He states that he completed the enrollment process.  However, he missed some classes due to field duty, because he was not allowed to come back in from the field to attend the classes.  He adds that after a few weeks he was told his classes would be rescheduled and he had to start all over again, but within a few months, he was discharged.

3.  The applicant provides an undated self-authored statement and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 August 1998, in support of his request.

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 records show he enlisted in the Regular Army for a period of 4 years on 17 January 1996.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records also show he served in Germany from on or about 28 May 1996 to 23 May 1997 and he was awarded the National Defense Service Medal, the Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  On 27 October 1997, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana. 

5.  On 19 November 1997, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for the use of illegal drugs.

6.  On 8 December 1997, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between on or about 28 September and 27 October 1997.  His punishment consisted of a reduction to private (PVT)/E-1, a forfeiture of $450.00 pay per month for 2 months (suspended until 7 April 1998), and 
45 days of extra duty.

7.  On 23 January 1998, the suspended portion of the punishment was vacated after the applicant failed to go to his appointed place of duty at the prescribed time on 7 January 1998.

8.  Based on the rehabilitation team's recommendation, on 3 February 1998, the applicant was declared a rehabilitation failure under the provisions of paragraph 4-26 of Army Regulation 600-85 (Army Substance Abuse Program).  The rehabilitation team determined that rehabilitation efforts were not practical.  The applicant did not make appointments and showed no motivation or desire to improve. 



9.  On 26 May 1998, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation 635-200 (Personnel Separations) due to ASAP rehabilitation failure.  The immediate commander cited the specific reasons for this action as the applicant's poor potential for rehabilitation of "alcohol abuse."

10.  On 26 May 1998, the applicant acknowledged receipt of the commander's intent to separate him and that he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  Further, he acknowledged that he understood he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and elected not to submit a statement on his own behalf.

11.  On 26 May 1998, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 due to ASAP rehabilitation failure.  The immediate commander recommended that further rehabilitation be waived and that the applicant be separated with a general discharge.

12.  On 11 June 1998, the separation authority approved the applicant’s discharge under the provisions of chapter 9 of Army Regulation 635-200 and directed that the applicant be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 10 October 1998.  The DD Form 214 he was issued confirms he was separated with a general discharge under honorable conditions.  This form further confirms he completed a total of 2 years, 6 months, and 24 days of creditable military service.  Item 26 (Separation Code) shows the entry "JPD" and item 27 (Reentry Code) shows the entry "4." 

13.  On 19 November 1999, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

14.  The applicant submitted an undated self-authored statement in which he states that he was unfairly discharged from the Army.  He adds that he made a few mistakes by missing some classes, but that was due to his field duty and the fact that his unit did not allow him to return from the field.  He also states that as a young field artillery private, he could not simply leave the field without authorization from his chain of command.  




15.  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 Soldiers because of alcohol or other drug abuse.  A member who has been referred to ASAP 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.  Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures (emphasis added).  The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required.  However, an honorable discharge is required if restricted-use information was used.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 635-200 states, in pertinent part, 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), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 includes a list of the Regular Army RE codes.  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification.

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The SPD code of "JPD" is the correct code for Soldiers separated under chapter 9 of Army Regulation 635-200.  

19.  The SPD/RE Code Cross Reference Table, dated 20 September 1993, and the table, dated October 1999, provide instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "KFS" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded and the RE code changed to a more favorable code.

2.  The evidence of record shows the applicant suffered from an alcohol and/or drug abuse problem and he was provided an opportunity to overcome his problem by use of counseling and referral to an ASAP.  He showed poor rehabilitation potential and he was declared an ASAP rehabilitation failure and accordingly his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There does not appear to be an error or an injustice in his discharge process.

3.  Based on the applicant’s record, ASAP failure, alcohol-related incidents, nonjudicial punishment, and the GOMOR that he received, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant’s service does not warrant a honorable discharge.

4.  The evidence of record further confirms the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 9 of Army Regulation 635-200, in lieu of trial by court-martial.  The RE code associated with this type of discharge is a RE code of 4.  Therefore, the applicant received the appropriate RE code associated with his discharge.

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, the applicant is not entitled to relief.




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)                                         AR20090005887



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005887



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1