IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090018924 


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, correction of appropriate military records to show a reentry eligibility (RE) code which would allow enlistment.

2.  The applicant states he wants to join the Army National Guard (ARNG) or U.S. Army Reserve (USAR).  He states, in effect, he was told when he was discharged that he could serve again after a two-year separation period following a review.  He states the ARNG and USAR recruiters say this is not true.  He further states he completed a civilian treatment program but this was not sufficient to reenlist.

3.  The applicant provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty), a four-page Chemical Dependency Summary Plan printout, and two letters regarding employment. 

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 U.S. Army Reserve on 2 September 1999.  He was awarded the military occupational specialty of medical equipment repairman.  He enlisted in the Regular Army for four years on 11 March 2003.    The highest rank/grade he held during his tenure of service was specialist/E-4.

3.  The applicant's records show he received developmental counseling on a number of occasions during the period 11 February to 26 November 2004.  The reasons for these counseling sessions included: 

	a.  being intoxicated while on duty; and

	b.  failing to follow guidelines of the Alcohol and Substance Abuse Program (ASAP) program by drinking heavily causing him to be unable to perform duty and in July 2004 he was found passed out in his room unable to respond to anybody.

4.  A DA Form 4856 (Developmental Counseling Form), dated 26 November 2004, indicates the applicant was sent to an addiction treatment facility for the period 7 September to 15 October 2004.

	a.  In that counseling form and an ASAP synopsis letter from the clinical director of the community counseling center it is shown that he initially followed the requirements of his aftercare plan but then started to deviate from his aftercare plan by not attending Alcoholics Anonymous meetings.

	b.  In the same counseling form it is stated that on this date the applicant was again found intoxicated and unable to respond to anybody.  It also indicates that the next day he was found intoxicated again.

	c.  As part of these counseling sessions he was informed that his continued unsatisfactory performance and/or misconduct could result in his being administratively separated from the U.S. Army under provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations).  At the conclusion of this counseling session he was informed that he was being recommended for separation under the provisions of Army Regulation 635-200, Chapter 9.

5.  In the ASAP synopsis letter it was stated that on 7 December 2004, his commander declared him a rehabilitation failure for continued alcohol use and failure to meet treatment goals.  The letter further stated the ASAP supported the command's decision to declare the applicant a rehabilitation failure in that all treatment options available for an active duty Soldier had been exhausted in his case and he could not apparently achieve and sustain sobriety to maintain a mission ready profile.

6.  On 10 January 2005, the applicant acknowledged he was afforded the opportunity to consult with appointed counsel for consultation but declined the opportunity.  He acknowledge he had been advised by his commander of the basis for the contemplated action to separate him for alcohol or other drug abuse rehabilitation failure under Army Regulation 635-200, Chapter 9, and its effect; of the rights available to him; and the effect of any  action taken by him to waive his rights.  He chose to not submit a statement on his own behalf.  He acknowledged that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

7.  On 10 January 2005, a memorandum from the Hanau Legal Center stated the separation action being taken against the applicant under the provisions of Army Regulation 635-200, Chapter 9, for alcohol or other drug abuse rehabilitation failure was legally sufficient.

8.  On 21 January 2005, the applicant was discharged with an honorable characterization of service under the provisions of chapter 9 of Army Regulation 635-200, alcohol rehabilitation failure after completing 1 year, 10 months, and 11 days of active military service during this period of active duty.  His DD Form 214 shows in item 26 (Separation Code) the entry "JPD" and item 27 (Reentry Code) shows the entry "4."

9.  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 RE 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.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), Table C-1, states that the SPD code JPD denotes alcohol rehabilitation failure.

11.  The Army Human Resources Command publishes a cross-reference list of SPD and RE codes.  The cross-reference list in effect at the time showed that an SPD code of JPD was assigned an RE code of 4.

12.  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 Components.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes.  Paragraph 3-22 of the regulation stated that RE-4 applied to a Soldier who was separated from last period of service with a nonwaivable disqualification.

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 rehabilitation failure.  A member who has been referred to Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) (currently, 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.

14.  The applicant provided a Chemical Discharge Summary Plan from the Chemical Dependency Treatment Center in Austin, MN.  The document indicates he was admitted to an intensive evening outpatient treatment program during the May to July 2008 time period with an initial diagnosis of alcohol dependence.  The plan indicated he would begin attending aftercare on 7 July 2008. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he had a pattern of 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 and received treatment at an addiction treatment facility.  This leaves no doubt that his command properly separated him for alcohol abuse rehabilitation failure.

2.  The applicant contends he was told when he was discharged that he could serve again after a two-year separation period.  However, his records show he acknowledged that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.  As such, it is clear that he was informed that he could "apply" for enlistment rather than that he could "serve" after a two-year separation period.

3.  The applicant was assigned the proper separation code, and the cross-reference list shows that the proper RE code for his separation code was RE-4.  As such, his RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  

4.  While it is commendable that the applicant has recently completed an outpatient treatment program for alcohol dependence and desires to enlist in the ARNG or USAR, there is no basis for changing a properly-assigned RE code or his reason for separation.

5.  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)                                         AR20090018924



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ABCMR Record of Proceedings (cont)                                         AR20090018924



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