BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090018664 


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 (RE) Code be changed so that he may be able to reenter the military.

2.  The applicant states that he went to alcohol rehabilitation and received an alcohol rehabilitation completion certificate.  He has been working on reentering the military for about 2 years.  He was a cavalry scout and he wants to reenter as a cavalry scout.  In April 2009, during his Army Discharge Review Board (ADRB) proceeding he was told to get an Alcohol Anonymous Rehabilitation Certificate, which he did.  He wants to complete his training and serve his country.  He also wants to obtain military educational benefits so that he can become an elementary school teacher.

3.  The applicant provides a copy of a Certificate of Achievement.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers request and statement to the applicant.

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 Army Delayed Entry Program on 7 September 2005.  He enlisted in the Regular Army in pay grade 
E-2 on 14 September 2005 for 4 years.

3.  On 27 February 2006, he was counseled for suspected consumption of alcohol while on duty, and the recommendation was nonjudicial punishment under the Uniform Code of Military Justice (UCMJ), and enrolled in the Army Substance Abuse Program (ASAP).  On the same date, he acknowledged receipt of the counseling. 

4.  On 6 March 2006, he was enrolled in ASAP and a Report to Suspend Favorable Personnel Action was initiated against him for adverse action.  

5.  On 10 March 2006, he accepted nonjudicial punishment under the UCMJ for being found drunk on duty on 27 February 2006.  His punishment included a reduction to pay grade E-1 and a forfeiture of $297.00 pay (both suspended, to be automatically remitted if not vacated before 5 September 2006), and 14 days of extra duty and restriction.  He did not appeal the punishment.

6.  On 3 and 10 April 2006, he was counseled for being drunk again while enrolled in ASAP.  

7.  On 5 May 2006, the Clinical Director, ASAP, declared the applicant a rehabilitation failure based on his failure to follow his treatment plan while enrolled in ASAP.  The director indicated that the applicant clearly demonstrated recalcitrance to the degree that further rehabilitation efforts in the military environment would not result in return to full effective duty.

8.  On 15 May 2006, the applicant's company commander notified the applicant that he was initiating separation action against him under the provisions of chapter 9, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for alcohol rehabilitation failure with a general discharge.  The company commander also advised the applicant that the bases for the proposed action was being drunk on duty, and drinking while enrolled in ASAP on at least three separate occasions.  The applicant was advised of his rights.

9.  On 16 May 2006, after consulting with counsel, he acknowledged receipt of the proposed action to separate him under the provisions of Army Regulation 635-200, chapter 9 for rehabilitation failure with a general discharge.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He waived his right to have his case heard by an administrative separation board and elected not to submit a statement in his own behalf.

10.  On 26 May 2006, the applicant's company commander recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 9, paragraph 9-2, prior to his expiration term of service.  

11.  On 23 June 2006, the appropriate separation authority approved the applicant's discharge and directed he receive general discharge.  

12.  He was discharged from active duty in pay grade E-2 on 30 June 2006, under the provisions of Army Regulation 635-200, chapter 9, for alcohol rehabilitation failure, with a general discharge.  He was credited with 9 months and 17 days of net active service.  Item 26 (Separation Code) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) contains the entry "JPD” and Item 27 (Reentry Code) shows an RE code of "4."  

13.  On 14 May 2009, the ADRB denied the applicant's request for a change in the character and/or reason for discharge.

14.  He submitted a copy of his Certificate of Achievement for successful completion of Individual Substance Abuse Counseling.

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 individuals because of alcohol or other drug abuse.  A member who has been referred to the Army's ASAP for alcohol/drug abuse may be separated because of an 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.  The individual could be issued an honorable or general discharge under honorable conditions.

16.  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 Reserve.  The regulation 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.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces reentry Codes, including RA RE Codes.  Chapter 3-10, also provides that RE Codes may be changed only if they are determined to be administratively incorrect.  

17.  An RE Code of 4 applies to persons separated from the last period of service with a non-waivable disqualification.  Members separated with an RE Code of 4 are ineligible for enlistment.  RE-3 applies to persons separated with a waiveable disqualification.  An RE Code of 2 is not currently used.  An RE Code of 1 means the Soldier is fully qualified for reenlistment.

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs to be used for these stated reasons.  The regulation shows the SPD Code of “JPD” as shown on the applicant’s DD Form 214 is appropriate for involuntary discharge when the narrative reason for separation is “Alcohol Rehabilitation Failure” and the authority for discharge is Army Regulation 635-200, chapter 9. 

19.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  It also shows SPD Codes with their corresponding RE Code.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD Code of “JPD” has a corresponding RE Code of “4.”

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was enrolled in ASAP in March 2006.  In May 2006, it was determined he was a rehabilitation failure and action was initiated to separate him from the service.  He was discharged on 
30 June 2006 under the provisions of Army Regulation 635-200, chapter 9.  The applicant was assigned an RE Code of "4" and an SPD Code of JPD based on his narrative reason for separation.  Both the RE Code and SPD Code are consistent with the applicant's narrative reason for separation.  The applicant has failed to show through the available evidence that the RE Code is in error or unjust.  Therefore, he has established no basis for changing his existing 
RE Code.

2.  The evidence of record also confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

3.  In order to justify correction of a military record, the applicant must show or it must otherwise appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090018664



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ABCMR Record of Proceedings (cont)                                         AR20090018664


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