IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100007397 


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 code 4 (RE-4) be changed to a more favorable code.

2.  The applicant states that:

   a.  improper and ineffective rehabilitation techniques were used;

   b.  ten years have passed since his discharge, he is a better man now, and he shouldn’t be barred from pursuing his lifelong dream;

   c.  he recently learned that his RE-4 code prohibits him from serving his country again;

   d.  since his discharge he has been doing volunteer work which includes working with children in drug prevention using his personal experiences; and

   e.  it is his goal to reenter military service and help his fellow Americans in any way possible.

3.  The applicant provides the following documents:

* self-authored statement
* photograph
* 
DD Form 214 (Certificate of Release or Discharge from Active Duty)
* three letters of support

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 record shows he enlisted in the Regular Army on 12 August 1999.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman).

3.  A urine specimen taken from the applicant on 23 March 2000 tested positive for the drug “THC.”

4.  On 5 April 2000, the applicant was command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for drug dependency.  He was enrolled in the ADAPCP as an outpatient on 11 April 2000.

5.  On 12 September 2000, the applicant’s urine specimen collected on 21 August 2000, tested positive for THC a second time.

6.  On 24 October 2000, the ADAPCP Clinical Director indicated that:

* the applicant attended a two-day treatment orientation during which he  expressed no commitment to discontinuing his pattern of marijuana use

* the applicant attended two out of twelve group sessions during which he acknowledged the likelihood of further adverse consequences if he continued marijuana use, but remained noncommittal about remaining drug free
* the applicant’s continued marijuana use and poor attendance at therapy sessions suggest minimal investment in making the behavioral changes necessary to remain drug free
7.  On 2 November 2000, the unit commander notified the applicant that action was being initiated to separate him under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel, chapter 9, based on his being declared an ADAPCP rehabilitation failure and recommended the applicant receive a general discharge (GD).

8.  On 2 November 2000, the applicant consulted with legal counsel and was advised of the basis of the contemplated separation action and of the effects of a GD.  Subsequent to this counseling the applicant completed an election of rights and elected not to submit statements in his own behalf.

9.  On 2 November 2000, the separation authority approved the applicant’s discharge and directed he receive a GD.  Accordingly, the applicant was discharged on 15 November 2000.

10.  The DD Form 214 issued to the applicant upon his discharge confirms he was separated under the provisions of Army Regulation 635-200, chapter 9, by reason of drug rehabilitation failure.  It also confirms he received a GD and that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of JPC and an RE-4.

11.  The applicant provided three letters of support from individuals who speak to his upstanding character and support his request for reenlistment into military service.

12.  On 22 October 2003, the Army Discharge Review Board (ADRB) voted to upgrade the applicant’s GD to an HD based on the use of limited-use information during the applicant’s discharge process.  The ADRB determined that the applicant was appropriately assigned the code of RE-4 based on the authority and reason for his discharge and denied his request to change his reentry code.

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 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.  Army policy states that an honorable or general discharge is authorized depending on the applicant’s overall record of service.  However, an honorable discharge is required if limited-use information is introduced in the discharge process.

14.  Army Regulation 635-5-1 (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.  The regulation identifies the SPD code of JPC as the appropriate code to assign members separated under the provisions of Army Regulation 635-200, chapter 9, by reason of drug rehabilitation failure.  The SPD/RE Code Cross Reference Table establishes
RE-4 as the proper reentry code to assign Soldiers separated with a SPD of JPC under these regulatory provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE-4 should be corrected because he was provided improper and ineffective rehabilitation techniques and because he desires to reenter military service and serve his country.

2.  The evidence of record confirms that attempts to rehabilitate him the applicant were made by enrolling him in the ADAPCP.  This effort failed and he was declared a rehabilitation failure by the ADAPCP Clinical Director and his commander.  It further shows that separation processing was accomplished in accordance with the applicable regulation, which includes the assignment of the SPD code of JPC and the RE-4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  By regulation, the RE-4 code assigned the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200, chapter 9, based on drug rehabilitation failure.  As a result, the RE-4 code assigned was properly assigned at the time of discharge and was and remains valid.  Absent any evidence of error or injustice in his separation processing, there is an insufficient evidentiary basis to support granting the requested relief.

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)                                         AR20100007397



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ABCMR Record of Proceedings (cont)                                         AR20100007397



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