IN THE CASE OF:	  

		BOARD DATE:	  10 July 2012

		DOCKET NUMBER:  AR20110017599 


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 narrative reason for separation and character of service for his general under honorable conditions discharge be upgraded.  In addition, the applicant requests that his social security number (SSN) and name be corrected on documents in his military service records.

2.  The applicant states, in effect, that his military service records should show:

* he received an honorable discharge
* his Reentry (RE) Code as a 1 
* promotion to private first class (PFC) which would have occurred in September 2009
* he successfully participated in the Army Substance Abuse Program (ASAP)
* back pay from the time of his separation
* his remaining $20,000.00 bonus money 
* he did not attempt suicide by taking prescriptions drugs
* he did not have an altercation with military police
* his chain of command pressured him not to accept legal counsel and if so he would receive a chapter 14 instead of a chapter 9
* his Army Discharge Review Board (ADRB) case contains inaccurate information 
* his separation proceedings have suspect "Unlawful Command Influence"
* his ADRB used verbal information shared between him and his mother during and following his hearing that constitutes an injustice
Following the hearing, the videographer spoke with Brendon and his mother in the hallway.  She mentioned to Brendon that she understood his feelings in regard to Air Defense as that was her MOS.  She also told him that upon return to the Army he should go to OCS and that he should expect a reply back within 30 days because it was an easy case.  Brendon was devastated with the denial of his review following the verbal information that was shared with him and his mother at the hearing.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* ADRB Proceedings, dated 19 April 2011
* 8 DA Forms 4856 (Developmental Counseling Form)
* an undated prescription request
* Orders 050-191, dated 15 January 2009, issued by Headquarters, U.S. Air Defense Center and Fort Bliss
* a Certificate of Completion, dated 17 March 2009
* a Certificate of Training, dated 20 August 2009
* a DA Form 268 (Report to Suspend Favorable Actions (Flag)), dated         1 September 2009
* a memorandum from the Clinical Director, ASAP, dated 1 September 2009
* an Enlisted Record Brief (ERB), prepared on 1 September 2009
* an email message, dated 17 March 2010
* an excerpt of a military police report 
* 23 pages of letters of support information provided by his parents
* 2 identification badges from the Security and Basic Firearms Institute

CONSIDERATION OF EVIDENCE:

1.  With respect to the applicant’s request to have documents in his military service records correctly show his name and SSN.  The applicant does not specifically identify the documents he wishes to be corrected.  As a result, this issue will not be discussed further in these Proceedings.

2.  The applicant’s military service records contain a DA Form 3286 (Statement for Enlistment United States Army Enlistment Program) indicates the applicant was authorized a $30,000.00 enlistment bonus that he authenticated with his signature on 9 September 2008.  This form states in item 3d, "Initial payment of 


my bonus will not exceed $10,000 upon completion of MOS training and arrival at my first duty station.  The remaining bonus amount will be paid in equal annual anniversary payments across the remainder of the enlistment term.  I understand that if I fail to complete my initial term of service in the incentivized MOS due to my own misconduct, my bonus will be forfeited and any unearned amount will be refunded."

3.  Item 9 of the DA Form 3286 (alcohol and drug abuse) states, "I understand that the Army’s policy on alcohol and drug abuse is that the Army must prevent alcohol and drug abuse in order to perform its mission to defend the United States, to ensure its combat readiness, and to protect the health and welfare of its Soldiers.  The illegal use of narcotics, or prescription drugs, or any use of marijuana or other illegal substances by Soldiers can lead to criminal prosecution and/or discharge under other than honorable conditions.  If I am identified for either alcohol or drug abuse, including the use or possession of marijuana, appropriate disciplinary and/or administrative action may be taken against me. This may include trial by court-martial or administrative separation from the Army.”

4.  The applicant enlisted in the Regular Army (RA) on 17 September 2008,  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 14T (Patriot Operator/Maintainer).

5.  On 6 March 2009, the applicant was assigned to A Battery, 3 Battalion, 2nd Field Artillery, Fort Sill, OK.  His military service records show he was issued a general counseling statement on 24 April 2009, for failure to obey a lawful order.

6.  On 11 May 2009, the applicant enrolled in the ASAP for his use of marijuana.  

7.   The applicant's military service records show he was issued two general counseling statements on 26 June 2009, for failure to obey order or regulation.

8.  On 9 July 2009, the applicant was admitted to Red River Hospital, for cannabis, alcohol, and prescription drug abuse.  On 6 August 2009, he successfully completed the ASAP.

9.  The applicant's military service records show additional disciplinary history that includes general counseling statements on the following dates:

* 12 August 2009 for failure to obey an order or regulation and a traffic violation
* 31 August 2009 for attempted suicide
* 31 August 2009 for having an unauthorized knife in the billets and three specifications of failure to obey an order or regulation

10.  An excerpt from a military police report indicates that on 31 August 2009 the military investigator indicated the applicant attempted suicide after taking an unknown amount of Triazocam and that he waved a sheathed knife and pointed it at several people.  It states, "B_______ was apprehended without incident and transferred to Reynolds Army Community Hospital (RACH) where he was treated for drug overdose.”

11.  On 31 August 2009, the applicant was admitted to RACH for an overdose of prescription medication.  

12.  On 1 September 2009, the ASAP Clinical Director at Fort Sill, OK advised the applicant's company commander by memorandum that the applicant’s intentional abuse of prescription medication constitutes a rehabilitation failure.  

13.  The Clinical Director further stated, "The service member’s behavior toward change and failure to accept responsibility has resulted in unsatisfactory participation in Rehabilitation Treatment.  The service member was afforded many opportunities to receive/obtain help.  This lack of motivation and continued aberrant behavior are indicative of commitment failure to treatment issues."

14.  On 28 September 2009, the applicant was notified by his company commander that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 9, for alcohol or other drug abuse rehabilitation failure.  The reason cited by the commander was that the applicant was declared an ASAP rehabilitation failure.

15.  The applicant was further advised that he was being recommended for a general under honorable conditions discharge with the reason for discharge as alcohol abuse rehabilitation failure.  He was also advised that this action was suspended for 7 days to give him the opportunity to "request appointment of military counsel, submit a statement on his behalf, or to waive the foregoing rights in writing or by declining to reply within 7 days."

16.  On 29 September 2009, the applicant acknowledged that he was advised of the basis for his separation under the provisions of Army Regulation 635-200.  The applicant declined his right to seek counsel and indicated that he did not provide statements on his own behalf.

17.  There is no evidence in the applicant’s available records that his chain of command coerced him into not seeking counsel or issuing him a discharge under the provisions of Army Regulation 635-200, chapter 14.

18.  There is no evidence in the applicant’s available service records that show he was recommended for advancement to the rank of PFC.

19.  On 16 November 2009, the applicant was discharged under the provisions of chapter 9, Army Regulation 635-200, in the rank and pay grade of private 
(PVT)/E-2.  He completed a total of 1 year and 2 months of creditable active service at the time of separation with no lost time.

20.  The applicant’s DD Form 214 shows in:

* Item 24 (Character of Service) "UNDER HONORABLE CONDITIONS (GENERAL)" 
* Item 26 (Separation Code) "JPD"
* Item 27 (Reentry Code) "4" 
* Item 28 (Narrative Reason for Separation) "ALCOHOL REHABILITATION FAILURE" 

21.  On 19 April 2011, the ADRB reviewed the applicant’s case and after careful consideration of the evidence, the board voted to change the applicant’s narrative reason for separation from "Alcohol Rehabilitation Failure" to "Drug Rehabilitation Failure" and to change his separation code from "JPD to JPC."  However, the character of service and the RE Code were determined to be proper and equitable; the board voted not to change them.  

22.  The applicant provided 23 pages of letters with supporting information provided by his parents.  Both authors state that their son should be re-instated in the Army.  The authors support their son and feel that he was improperly discharged from the Army.

23.  Chapter 5 of Army Regulation 600-85 (ASAP) states that Soldiers who are rehabilitation failures will be processed for administrative separation when the unit commander, in consultation with the ASAP staff, determines that further rehabilitation efforts are not practical and that rehabilitation is a failure

24.  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 general discharge was authorized.

25.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

26.  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 processing into the Regular Army, U.S. Army Reserve, and Army National Guard and includes a list of Armed Forces RE codes:

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

   b.  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.

	c.  RE-4 applies to persons separated from last period of Service with a nonwaivable disqualification.

27.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for and types of separation from active duty.  The "JPC" SPD is the correct code for Soldiers separating under chapter 9 of Army Regulation 
635-200 by reason of drug rehabilitation failure.  Additionally, the SPD/RE Code Cross Reference Table establishes that the RE code of 4 was the proper reentry code to assign Soldiers with an SPD code of "JPC” or “JPD."  

28.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policies and procedures for the promotion and reduction of enlisted Soldiers.  


This regulation authorizes unit commanders to promote Soldiers to the grades of specialist (SPC) or corporal (CPL) and below. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to have his narrative reason for separation and character of service upgraded was carefully considered and it was determined there is insufficient evidence to support his request.  The applicant has failed to submit evidence that the narrative reason and character of service are in error or unjust.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant was aware of the Army’s policy on alcohol and drug abuse at the time of enlistment.  On 6 August 2009, he successfully completed the Army’s ASAP.  On 31 August 2009, he was admitted at RACH for an overdose of prescription medication.  His unit commander, in consultation with the ASAP Clinical Director determined the applicant was a drug rehabilitation failure.  The unit commander initiated separation proceedings shortly afterwards.

4.  The elimination proceedings verified that the applicant was afforded due process.  He was given an opportunity to raise any issues he deemed appropriate during his separation processing.  He waived counsel and he elected not to make a statement in his own behalf.  There is no evidence in the applicant’s records and he has not provided evidence that shows he was coerced into declining counsel or not making a statement in his behalf.

5.  The applicant’s case was appropriately reviewed by the ADRB and that board voted to administratively correct his narrative reason from "alcohol rehabilitation failure" to "drug rehabilitation failure and to change his separation code from "JPD" to "JPC."  His narrative reason for separation and character of service were determined to be proper and equitable.  There is no evidence that the 
ADRB used verbal information shared between the applicant and his mother during and following his hearing. 

6.  The "videographer," mentioned by the applicant was probably the ADRB Secretary/Recorder, who does not participate in the ADRB’s deliberation, discussion, or vote.   If the applicant is asserting that discussions between him 


and his mother in the board room was used, if it was open discussion, then that was available for the board's consideration.   

7.  In the absence of military records which show the applicant was recommended for advancement to PFC/E-3 by his unit commander prior to his separation from active duty, there is an insufficient basis on which to change his pay grade.  Therefore, his rank of PV2 and pay grade of E-2 as shown on his issued DD Form 214 appear to be correct.

8.  With respect to the applicant’s request to be issued the remainder of his enlistment bonus, evidence of record shows he forfeited the remainder of his enlistment bonus for failing to complete his initial term of service in the incentivized MOS 14T.  Therefore, the applicant is not due an enlistment bonus.

9.  Although his parents contend the applicant did not attempt suicide, military records show the applicant was treated at RACH for an overdose of prescription medication and suicide attempt.

10.  The applicant's contention that his RE code of "4" should be changed on his DD Form 214 was carefully considered.  However, the available evidence shows he was involuntarily discharged from active duty due to drug rehabilitation failure.  By regulation, this mandated an assignment of an SPD code of "JPC" and a corresponding RE code of "4."  There is no evidence of an error or injustice related to the entries in question; therefore, they were valid at the time of separation and remain valid today.  No other SPD or RE codes are appropriate.  

11.  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)                                         AR20110017599





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ABCMR Record of Proceedings (cont)                                         AR20110017599



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