BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090007910 


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 change of his reentry eligibility (RE) code of 3 and his reason for separation to allow enlistment.

2.  The applicant states he went to various programs and is now clean and sober and would like to be eligible to re-enlist in the Army.

3.  The applicant provides no additional documentary evidence in support of this application.

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 records show he enlisted in the Regular Army on 24 February 1984.  On 12 February 1988, he reenlisted for two years.  He was awarded the military occupational specialty of watercraft engineer, and was promoted to pay grade E-5.

3.  On 14 December 1988, the applicant was command-referred to the Fort Eustis Counseling Center as a result of being charged with driving under the influence (DUI) of alcohol on 27 June 1987 and 10 December 1988.  He was diagnosed as alcohol dependent and was evaluated for Track III in-patient treatment.  He refused to follow the treatment plan and continued to use alcohol.

4.  On 1 August 1989, the Fort Eustis Community Counseling Center staff reported the applicant to be a rehabilitative failure as evidenced by his continued abuse of alcohol and his recidivistic behavior.

5.  A DA Form 4856 (General Counseling Form), dated 10 August 1989, indicates that while assigned to that unit the applicant was charged on two occasions for DUI.  He was advised that further conduct of this nature may result in punitive action under the Uniform Code of Military Justice (UCMJ) and/or separation under the provisions of Army Regulation 635-200.

6.  On 25 September 1989, the applicant's commander recommended he be separated for rehabilitation failure in accordance with Army Regulation 635-200 (Personnel Separations), Chapter 9 (Separation for Alcohol or Other Drug Abuse).

7.  The applicant's commander's recommendation was approved by the appropriate authority.  Accordingly, on 2 October 1989, the applicant was discharged with an honorable characterization of service under the provisions of Army Regulation 635-200, chapter 9 after completing 5 years, 7 months, and 9 days of active military service with a separation program designator (SPD) code of JPD and an RE-3.

8.  Army Regulation 635-5 establishes the standardized policy for preparing and distributing the DD Form 214.  Table 2-1 of this regulation in effect at the time referenced chapters 1 and 2, and Appendix D of Army Regulation 601-280 (Army Retention Program) for reenlistment eligibility codes to be entered in item 27 of the DD Form 214.  Item 28 (Narrative Reason for Separation) of the DD Form 214 is based on regulatory or other authority for separation.

9.  Army Regulation 635-5-1 (SPD Codes), table 2-3, states that the SPD code JPD denotes alcohol abuse - rehabilitation failure.



10.  The SPD/RE code cross-reference table in effect at the time showed that an SPD code of JPD was assigned RE Code 3.

11.  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 and processing into the Regular Army and the U.S. 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.  Table 3-1 of the regulation states that a code of RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.

12.  Army Regulation 601-210 provides that RE codes may be changed only if they are determined to be administratively incorrect.

13.  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 Alcohol and Drug Abuse Prevention and Control Program (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he had two alcohol-related incidents and that he was afforded the opportunity to successfully complete alcohol rehabilitation.  However, he continued to consume alcohol after he was referred to alcohol abuse counseling.  This leaves no doubt that his command properly separated him for alcohol abuse rehabilitation failure. 

2.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  

3.  While it is commendable that the applicant has gotten sober since his discharge and desires to enlist in the Army, there is no basis for changing a properly assigned RE code or his reason for separation.



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)                                         AR20090007910



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ABCMR Record of Proceedings (cont)                                         AR20090007910



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