BOARD DATE: 10 May 2012
DOCKET NUMBER: AR20110023042
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 separation program designator (SPD) code and reentry eligibility (RE) code be changed in the interest of justice.
2. The applicant states:
* the first incident of alcohol rehabilitation was voluntary, which he completed in April 2004 at Fort Riley, KS
* due to worries of severe indebtedness, financial, and health issues in 2004, he relapsed and the Army ordered him into the Army Substance Abuse Program (ASAP)
* at the time of his discharge in 2005, he had no intention of reenlistment so his RE code is improper based on paragraphs 8-3a and 8-3b of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations)
3. The applicant provides:
* reverse of DA Form 8003 (Alcohol and Drug Abuse Prevention and Control Program Enrollment)
* excerpts from Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), Army Regulation 635-200, and Army Regulation 601-280 (Army Retention Program)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
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 5 September 2002 for a period of 3 years. He completed his training and was awarded military occupational specialty 45K (armament fire control maintenance supervisor).
3. On 9 December 2004, he was found guilty of driving under the influence of alcohol in Kansas. The court ordered a drug and alcohol evaluation.
4. He was enrolled in ASAP on 13 December 2004 for alcohol use.
5. On 2 February 2005, the applicant was declared a rehabilitation failure by a substance abuse counselor and the clinical director of ASAP for failure to follow his treatment plan while enrolled in treatment. It was noted that this was the second enrollment in intense group treatment.
6. He was recommended for discharge under the provisions of Army Regulation 635-200, chapter 9, as an alcohol abuse rehabilitation failure. The separation authority approved the recommendation and directed the issuance of a general discharge.
7. He was discharged on 9 March 2005 under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse rehabilitation failure and issued a General Discharge Certificate. He completed 2 years, 6 months, and 5 days of creditable active service.
8. Item 25 (Separation Authority) of his DD Form 214 shows the entry "Army Regulation 635-200, chapter 9." Item 26 (Separation Code) of his DD Form 214 shows the entry "JPD." Item 27 (Reentry Code) of his DD Form 214 shows the entry "4." Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "alcohol rehabilitation failure."
9. His service personnel records do not show he received a bar to reenlistment.
10. 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.
11. Chapter 8 of Army Regulation 635-200 pertains to bar to reenlistment procedures. Paragraph 8-3a states a bar to reenlistment will not be initiated when separation action is pending under Army Regulation 635-200. Paragraph 8-3b states a bar to reenlistment will not be initiated solely because a Soldier refuses to reenlist.
12. 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 SPD codes to be used for these stated reasons. The regulation states the reason for discharge based on SPD code JPD is "alcohol rehabilitation failure" and the regulatory authority is Army Regulation 635-200, chapter 9.
13. Pertinent Army regulations provide that individuals will be assigned RE codes prior to discharge or release from active duty 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, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.
a. RE-1 applies to persons completing an initial term of active service who were 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 their last period of service with a non-waivable disqualification.
14. The SPD/RE Code Cross Reference Table, dated 31 March 2003, shows that when the SPD is JPD, then an RE-4 will be assigned.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that at the time of his discharge in 2005 he had no intention of reenlisting so his RE code is improper based on paragraphs 8-3a and 8-3b of Army Regulation 635-200. However, these paragraphs apply to bar to reenlistment procedures. He did not receive a bar to reenlistment.
2. His SPD code and RE code were administratively correct and in conformance with applicable regulations at the time of his separation. There is an insufficient basis with which to grant his request to change his SPD code or RE code.
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 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) AR20110023042
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