BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090019616 


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 her reentry eligibility (RE) code be changed from RE-4.

2.  The applicant states she wants her RE code changed to allow her to reenter the military.

3.  The applicant provides copies of:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* a letter from a sergeant first class, dated 5 December 1996
* her transcripts from Academy College
* her transcripts from the University of Phoenix
* a letter, dated 6 August 2008, from U.S. Army Human Resources Command, Alexandria, VA
* a letter, dated 9 October 2009, from Ford Motor Company
* a letter, dated 20 October 2009, from a retired colonel

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 personnel records show she enlisted in the Regular Army on 2 December 1993.  She completed basic combat training and advanced individual training and was awarded military occupational specialty 93P (Aviation Operations Specialist).

3.  On 21 August 1995, the applicant was enrolled in the Schofield Barracks Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

4.  On 22 October 1996, the Clinical Director, ADAPCP, Tripler Army Medical Center, HI, notified the applicant's commander a determination had been made that further rehabilitation efforts were not practical rendering the applicant a rehabilitation failure due to noncompliance of treatment recommendations.  The director requested discharge procedures be initiated within 60 days under the procedures outlined in chapter 9 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

5.  On 23 October 1996, the applicant requested a favorable discharge from ADAPCP and to remain in the Army to finish her enlistment.

6.  On 1 November 1996, the applicant received formal counseling from her commander.  The commander notified her she was being separated from the service due to her lack of effort.  The commander stated the command had provided ample support and allowed her the opportunity to correct the challenges she faced.  In response to this counseling, the applicant stated she should not have been placed in ADAPCP and she felt should not be penalized due to her inability to grasp the information.  She stated she was a hard worker and requested to remain in the service.

7.  On 14 November 1996, the applicant received a mental status evaluation.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

8.  On 5 December 1996, the applicant's commander notified her he was initiating action to discharge her under the provisions of chapter 9 of Army Regulation 635-200 because it had been determined that further rehabilitation efforts were not practical.  The commander further advised the applicant he was recommending that she receive a General Discharge Certificate.

9.  The commander advised the applicant she had the right to:

* consult with counsel
* submit written statements in her own behalf
* obtain copies of documents being sent to the separation authority
* waive these rights and withdraw any such waiver any time prior to the date her separation is approved

10.  On 5 December 1996, the applicant acknowledged that she had been advised by counsel of the basis for the contemplated action against her under the provisions of chapter 9 of Army Regulation 635-200 for alcohol rehabilitation failure.  She acknowledged that she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.  The applicant requested and she was provided counsel prior to waiving her rights.  The applicant submitted a statement in her own behalf.

11.  A captain of the Judge Advocate General's Corps countersigned her acknowledgment and attested that he had counseled her concerning the basis for her contemplated separation and its effects, the rights available to her, and the effects of a waiver of her rights.

12.  On 5 December 1996, the applicant's commander recommended her for discharge under the provisions of chapter 9 of Army Regulation 635-200.  The commander stated that consultation between the command and the rehabilitation team had determined that further rehabilitation efforts were not practical, rendering her a rehabilitation failure.  The commander stated the applicant had no potential for useful service under conditions of full mobilization and recommended she not be transferred to the Individual Ready Reserve.

13.  On 10 December 1996, the applicant requested that her separation under the provisions of chapter 9 of Army Regulation 635-200 be suspended for a period of 6 months.  On 12 December 1996, her request was denied.

14.  On 6 January 1997, the appropriate authority approved the recommendation for discharge under the provisions of chapter 9 of Army Regulation 635-200 and directed that the applicant be furnished an Honorable Discharge Certificate.

15.  On 9 March 1997, the applicant was discharged under the provisions of chapter 9 of Army Regulation 635-200 due to alcohol rehabilitation failure.  She was assigned a separation program designator (SPD) code of JPD and assigned an RE code of RE-4.  She had completed 3 years, 3 months, and 8 days of active service that was characterized as honorable.

16.  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 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.  At the time of the applicant's separation an honorable or general discharge was authorized.

17.  Army Regulation 635-5-1 (Separation Program Designator Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons.  The regulation showed the SPD code JPD as shown on the applicant's DD Form 214 specified the narrative reason for discharge as "alcohol rehabilitation failure."

18.  The SPD/RE Code Cross-Reference Table, then in effect, indicated the appropriate RE code for SPD code JPD was RE-4.

19.  Pertinent Army regulations stated 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 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of Armed Forces RE codes.  Paragraph 3-22 (U.S. Army RE Codes) stated that an RE-4 applied to persons separated from their last period of service with a non-waivable disqualification.  These individuals are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her RE code 4 should be changed to allow her to reenter the military service.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize her rights.

3.  The applicant was processed for separation due to alcohol rehabilitation failure.  Therefore, the SPD code JPD is correct.  According to the SPD/RE Code Cross-Reference Table, the assignment of RE-4 for the applicant's SPD code JPD is administratively correct.

4.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient to change a properly-assigned RE code.  The ABCMR does not change records based solely on the passage of time.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

6.  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 that 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)                                         AR20090019616



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ABCMR Record of Proceedings (cont)                                         AR20090019616



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