IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100011582 


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 his general discharge be upgraded.  He also requests his reentry (RE) code and narrative reason for separation be changed. 

2.  The applicant states:

* He was a stellar Soldier/noncommissioned officer (NCO) and he loved the Army way of life
* He was wrongly treated and discharged
* His discharge was inequitable because it was based on one isolated incident in 8 years and 8 months of service with no adverse action
* A court document shows all charges were dropped
* His command didn't even wait for his court date, a month later he went to court and the driving under the influence (DUI) charge was dropped
* His record shows he won and participated in Soldier/NCO of the month/quarter/year boards
* He was on funeral detail for more than 3 years
* He never had an Article 15 or letter of reprimand
* He waived his rights because his officer in charge told him if he was chaptered out it would not affect him in coming back in the military
* He went from E-1 to E-6 in less than 7 years
* He graduated from college in September 2010
* His Army Substance Abuse Program (ASAP) counselor [David D] at the time in question states he was making progress on his depression and he did not deserve what happened to him
* At the time in question he was having marital problems
* He does not drink anymore and when he has a crisis he turns to his faith
* He has a family and 18-month old son     

3.  The applicant provides:

* Statement, dated 6 January 2010, from his ASAP counselor [David D]
* Statement of support, dated 5 March 2009, from a fellow Soldier
* Undated character reference letter from a police officer
* Recommendation for enlistment/retention, dated 27 March 2006
* Court document, dated 23 August 2004
* Two certificates of achievement
* Two character reference letters from employers 

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 enlisted in the Regular Army on 22 June 1995 for a period of 
3 years.  He trained as a corrections specialist.  On 7 August 1997, he was honorably discharged for immediate reenlistment.  On 8 August 1997, he reenlisted for a period of 6 years.  He was promoted to staff sergeant effective 
1 February 2002.  On 24 April 2003, he was honorably discharged for immediate reenlistment.  On 25 April 2003, he reenlisted for a period of 6 years.    

3.  The applicant was enrolled in ASAP on 17 November 2003 for outpatient treatment.  On 24 March 2004, he was involved in a single car accident while he was intoxicated.  Subsequently, he refused to attend a 4-week intense inpatient treatment program designed for addiction disorders.  

4.  On 12 May 2004, the applicant was declared a rehabilitation failure by an ASAP counselor [David D].  In his letter, the counselor states, "Since 24 March 2004 I have discussed with SSG [applicant's last name] the necessity for him to attend a 4-week intense inpatient treatment program designed for addiction disorders.  Regrettably, the soldier has indicated on several occasions that he is either not interested and/or of the opinion the program will not be helpful.  SSG [applicants' last name] refusal to participate in recommended treatment meets the criteria for an administrative separation as a rehabilitation failure."

5.  The applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 9, for alcohol or other drug abuse rehabilitation failure.  On 3 June 2004, the applicant consulted with counsel, waived his rights, acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him, and elected not to submit a statement in his own behalf.  On 
9 June 2004, the separation authority approved the recommendation for discharge and directed that the applicant be furnished a general discharge.     

6.  Accordingly, the applicant was discharged under honorable conditions 
(a general discharge) on 25 June 2004 under the provisions of Army Regulation 635-200, chapter 9, for alcohol rehabilitation failure.  He had served 9 years and 4 days of creditable active service.

7.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, CHAP [Chapter] 9.”  Item 26 (Separation Code) on his DD Form 214 shows the entry "JPD."  Item 27 (Reentry Code) on his DD Form 214 shows the entry "4."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry "ALCOHOL REHABILITATION FAILURE.”

8.  In support of his claim, the applicant provided a statement, dated 6 January 2010, from his ASAP counselor [David D] at the time in question.  He attests:

* He was the applicant's counselor during the time he was enrolled in the ASAP in 2004
* The specifics of the applicant's enrollment in the Army program are memorable for at least two instances where he was failed by his chain of command
* His command refused to reassign him to another unit after his spouse, a Soldier assigned to the same organization, had an affair with his best friend, which precipitated the applicant's abusive use of alcohol
* The applicant's battalion-level chain of command refused to support his [counselor's] program recommendation for inpatient treatment, which was appropriate following the applicant's involvement in an off-post incident
* He was disappointed the applicant's chain of command would not support the treatment recommendation for the applicant's diagnosis as the applicant impressed him as having a strong affiliation with the service and proficiency in his military occupational specialty  
9.  The applicant provided character reference letters from a police officer and two employers.  They attest the applicant is responsible, loyal, reliable, a leader, and professional.  He also provided letters of support.  

10.  On 1 June 2007, the Army Discharge Review Board denied the applicant's request for a discharge upgraded.

11.  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 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.  At the time of the applicant's separation an honorable or a general, under honorable conditions discharge was authorized.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JPD is “Alcohol Rehabilitation Failure” and the regulatory authority is Army Regulation 635-200, chapter 9.  

14.  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 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

15.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

16.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

17.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

18.  The Separation Program Designator (SPD) Code/Reentry Code Cross Reference Table, dated 31 March 2003, shows that when the SPD is "JPD," then an RE code of 4 will be given.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's ASAP counselor at the time in question now contends the applicant did not deserve what happened to him and that his battalion-level chain of command refused to support the ASAP recommendation for inpatient treatment following the applicant's involvement in an off-post incident.  However, evidence of record shows on 12 May 2004 the counselor reported he had discussed with the applicant the necessity for him to attend a 4-week intense inpatient treatment program designed for addiction disorders but the applicant indicated on several occasions that he was either not interested and/or of the opinion the program will not be helpful.  The counselor also stated the applicant's refusal to participate in recommended treatment met the criteria for an administrative separation as a rehabilitation failure.

2.  The character reference letters and letters of support submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

3.  The applicant was a staff sergeant who was enrolled in ASAP in November 2003.  He was subsequently involved in an alcohol-related incident, he refused to participate in treatment, and he failed to complete ASAP.  As a result, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The applicant acknowledged that he might encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him.
   
5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  The applicant’s RE code and narrative reason for separation were administratively correct and in conformance with applicable regulations at the time of his separation.  There is an insufficient basis on which to grant his request to change his RE code or narrative reason for separation.

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)                                         AR20100011582





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ABCMR Record of Proceedings (cont)                                         AR20100011582



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