IN THE CASE OF:	  

		BOARD DATE:	  26 August 2009

		DOCKET NUMBER:  AR20090006865 


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 2004 RE (Reentry) code of “4” be changed to RE-3.

2.  The applicant states he realized the RE code was due to a serious error on his part, however, he believes the Army discharged him without fully realizing the stress that his family conditions put on him at the time of his discharge.  He states that he has resolved his family situation and undergone a rigorous program of drug abuse treatment.  He notes it has been three years since he successfully completed the program and is now employed as a Readjustment counselor at the VA (Department of Veterans Affairs) hospital.  He states he is requesting the change in his RE code so he can enlist in the Connecticut National Guard and is confident that he is fully capable of serving his country again both physically and mentally.

3.  The applicant provides four statements from coworkers and former military members who support his petition to return to military service.

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.  Records available to the Board indicate the applicant initially entered military service as a member of the Puerto Rican Army National Guard in 1984 and entered active duty as a Regular Army enlisted Soldier in June 1989.  Over the course of the next 14 plus years, the applicant served in a variety of assignments, including one tour of duty in Southwest Asia during the Gulf War where he was awarded a Combat Infantryman Badge.  By December 2000 he had been promoted to pay grade E-7.  His records contain one record of nonjudicial punishment from December 2002 when he was punished for adultery.

3.  On 7 April 2004, while performing duties as the station commander at the Army Recruiting Station in Albany, New York, the applicant’s battalion commander initiated actions to administratively separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 9, due to drug abuse rehabilitation failure.  The battalion commander indicated his proposal was based upon the determination that the applicant was a rehabilitation failure on 
1 March 2004 as a result of noncompliance with program rules and regulations.  The battalion commander indicated he was recommending the applicant receive an honorable discharge.

4.  Documents associated with his drug rehabilitation program indicate that he was involved in rehabilitation programs in Norfolk, Virginia as early as October 2003 and in Newport, Rhode Island in December 2003.  A narrative summary of his treatment noted the applicant blamed his wife for all of his problems, and constantly portrayed himself as a victim, that he was disruptive in group, constantly talked over others, rejected feedback, and constantly explained away his actions or justified his behavior.  The summary noted that applicant’s disclosures about his drug use were incongruent, first claiming to have begun Crack Cocaine use two years ago, then insisting he began one year ago, and only heavily in the last few months.  He was not receptive to feedback from the staff about his incongruence, and he was informed that continued dishonesty would result in discharge from treatment.  The summary indicated the applicant made no effort to develop a 12-step support system and made no progress on tasks to manage Crack Cocaine cravings.  When it was discovered that he had pre-service Cocaine use, he was given another opportunity to be honest, but continued to misrepresent his drug use history.  Ultimately he disclosed he used Crack Cocaine every weekend for one year in 1985, but appeared to minimize his use and continued to be vague and would not give specifics about his use and portrayed himself as a “social” Crack Cocaine user.  Ultimately the applicant failed to complete requirements of the treatment program, including completing daily critiques and contacting his 12-Step contacts.  He was subsequently discharged from treatment due to noncompliance.

5.  On 15 April 2004 the applicant consulted with legal counsel and acknowledged the proposed separation action.  He ultimately waived his attendant rights, including his right to submit statements in his own behalf.

6.  On 16 April 2004 the appropriate authority approved the recommendation and directed that he be issued an Honorable Discharge Certificate.  On 23 April 2004 the applicant was discharged accordingly.  The applicant’s DD Form 214 shows that he had completed just over 15 years of creditable active military service.  He was assigned an SPD Code of JPC and an RE Code of “4”.  His character of service was honorable. 

7.  The statements submitted by the applicant in support of his request to return to military service all attest to the applicant’s good character and that he would be a fine addition to the military.  

8.  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 and the United States Army Reserve.  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 Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

9.  Army Regulation 635-5-1 (Separation Program Designator 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5-1 (Separation Documents) establishes RE codes to be assigned for each SPD.  

10.  An SPD code of “JPC” was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, Chapter 9, due to drug rehabilitation failure.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated as a result of drug rehabilitation failure.  

11.  Army Regulation 601-210 also provides, in pertinent part, that RE codes may only be changed if they are determined to be administratively incorrect. 

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his RE code of "4" be changed so that he may return to active duty to serve his country was considered; however, it does not serve as a basis to change a properly assigned RE code regardless of the Army’s current enlistment policies.

2.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his failure of the drug rehabilitation program, and the Board could find no basis upon which to change this reason.  

3.  His argument that he was discharged by the Army without fully realizing he was under stress as a result of his family situation is not supported by the evidence of record.  Rather, the evidence indicates the applicant was given multiple opportunities to participate in drug rehabilitation programs and failed to take advantage of those opportunities.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

4.  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)                                         AR20090006865





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ABCMR Record of Proceedings (cont)                                         AR20090006865



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