BOARD DATE:	    6 October 2011

		DOCKET NUMBER:  AR20110003474 


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 the Separation Authority (item 25) on his DD Form 214 (Certificate of Release or Discharge from Active Duty), Separation Code (item 26), Reenlistment (RE) Code (item 27), and Narrative Reason for Separation (item 28) be changed.

2.  The clerk entered this information by mistake.  There was no alcohol or other drug abuse.  He asked to be discharged because he was threatened and robbed by other Soldiers who threatened his family if he identified them.  He was told that the Narrative Reason for Separation would be "Under Honorable Conditions."

3.  He also states that he did not have the DD Form 214 until he obtained it in 2010 from the National Personnel Record Center.  He is presently rated at 30 percent disabled by the Department of Veterans Affairs (VA), but is afraid that the information in items 25 through 28 might hurt him.

4.  The applicant submitted no additional documentation in support of his request.

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 2 April 1980.  He completed training in military occupational specialty 13B as a cannon crewman.

3.  On 1 May 1980, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for disrespectful language by saying, "F--- you " to a staff sergeant.  The partially suspended punishment was subsequently revoked.  Notwithstanding this misconduct the applicant was advanced to pay grade E-2 on 2 October 1980.  

4.  He received another NJP, on 25 November 1980, for possession of amphetamines.  He was barred from reenlistment because of the above and four other instances of misconduct.

5.  The applicant was notified of initiated separation action for alcohol and drug abuse.  He was informed that he could consult with counsel and rebut the basis for the separation.  The applicant elected to do neither. The separation authority approved the recommendation and directed that an honorable discharge be issued under the provisions of Army Regulation 635-200, chapter 9 for abuse of alcohol; and other drugs.  (There is no available evidence that the applicant was referred to the Army Drug and Alcohol Prevention and Control Program (ADAPCP), but his medical records where such information would be located is apparently in the hands of the VA).

6.  On 6 March 1981, the applicant was so discharged.  The separation authority listed in item 25 is Army Regulation 635-200, chapter 9; separation code JPB is shown in item 26; the reenlistment code of RE-3 is shown in item 27 and the narrative reason for separation shown in item 28 is "Alcohol or other drug abuse (exemption policy)."

7.  The applicant subsequently enlisted in the U.S. Navy (apparently without disclosing his Army service) and received a general (under honorable conditions) discharge for minor disciplinary infractions.

8.  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 Soldiers 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.  Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions.  However, an honorable discharge is required if restricted-use information was used.

9.  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 and processing into the Regular Army (RA) 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, including RA RE codes.

10.  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.  It states, in pertinent part, that the SPD code of JPB is the appropriate code to assign to Soldiers involuntarily separated under the provisions of chapter 9, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table included in the regulation establishes   RE-3 as the proper code to assign members separated with this SPD code.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service clearly involved drug abuse as evidenced by the NJP for possession of amphetamines, and he offered no rebuttal to the recommended separation.

2.  He was offered and declined consultation with counsel.  The discharge process was properly administered and the reason for it was appropriate.

3.  The applicant was separated and assigned an RE code in accordance with regulations then in effect.

4.  In view of the circumstances in this case, the assigned RE code was and still is appropriate.  There appears to be no basis for removal or waiver of those disqualifications that established the basis for the reentry eligibility code.
5.  In view of the foregoing there is no basis for granting the applicant's 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)                                         AR20110003474





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ABCMR Record of Proceedings (cont)                                         AR20110003474



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