IN THE CASE OF:	  

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090012284 


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 4 be changed to allow him to enter the Army National Guard (ARNG) or U.S. Army Reserve (USAR).

2.  The applicant states he was an outpatient at a Department of Veterans Affairs (VA) Medical Facility for alcohol treatment and has been clean and sober since 21 July 2006.

3.  The applicant provides, in support of his application, a copy of a VA Eastern Colorado Health Care System letter, dated 24 June 2009.

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.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant had prior honorable enlisted service in the Regular Army (RA) from 22 July 1983 through 19 May 1986 and that he completed 2 years, 9 months, and 28 days of net active service.

3.  The applicant enlisted in the USAR on 5 August 1986 and again enlisted in the RA on 29 October 1986.  He continued to serve on active duty and attained the rank of staff sergeant/pay grade E-6.

4.  On 9 October 1996, the applicant's commander recommended the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9 (Separation for Alcohol or Other Drug Abuse), paragraph 9-2, based on alcohol rehabilitation failure.  The battalion commander also recommended approval of the separation action with an honorable discharge.

5.  On 7 November 1996, a board of officers convened, the applicant appeared before the board, and he was represented by counsel.  The board found that the notice of proposed separation was supported by a preponderance of the evidence, the findings warranted separation, and the board recommended the applicant be issued an honorable discharge.

6.  On 10 January 1997, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 9-2, based on alcohol rehabilitation failure.  The separation authority also directed the applicant be issued an Honorable Discharge Certificate.

7.  He was honorably discharged on 22 January 1997 and assigned a separation code of "JPD."  At the time he had completed 10 years, 2 months, and 24 days of net active service.

8.  In support of his application, he provides a letter from the Clinical Psychologist and Director, Community-Based Substance Abuse Treatment Program, VA Eastern Colorado Health Care System, that states he has been a patient for approximately 2 years and is now close to 3 years of continuous sobriety.  The medical official adds that the applicant is requesting to be considered for enlistment in the USAR or ARNG.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) 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.  It identifies the SPD code of "JPD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, paragraph 9-2, based on alcohol rehabilitation failure.

10. The SPD Code/RE Code Cross Reference Table shows that a Soldier issued an SPD code of "JPD" will be assigned an RE code of 4.

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in pertinent part, provides 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.  An RE code of 4 applies to persons who have a non-waivable disqualification and may not request reentry.  This Army regulation also provides that prior-service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code of 4 should be changed because he received outpatient alcohol treatment, he has been clean and sober for more than 3 years, and he desires to enlist in the USAR or ARNG.

2.  The applicant's discharge was administratively correct and in compliance with applicable regulations.  In addition, all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's completion of an outpatient program for alcohol treatment and the fact that he has been clean and sober for more than 3 years were carefully considered.  However, it is insufficient as the sole basis for changing his RE code.

4.  The applicant's assigned RE code of 4 is based on the authority and reason for his discharge.  Thus, the assigned RE code was appropriate at the time of discharge and it remains valid.  Therefore, there is no basis to change the applicant's RE code.

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 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)                                         AR20090012284



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ABCMR Record of Proceedings (cont)                                         AR20090012284



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