IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110024169 


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 (RE) code of "4" be changed so that he may enlist in the U.S. Army Reserve (USAR).

2.  The applicant states, in effect, he was told that after a 2-year break in service he could reenter the military.  However, a military recruiter told him that due to his assigned RE- code he cannot reenter the military.  He contends that under the provisions of Army Regulation 635-200, chapter 9, his RE code should be at a minimum a "2."

3.  The applicant further states he always performed to the highest standard.  He always went above and beyond.  He graduated with honors in almost every course of training.  His discharge cost him the most important things in his life which is serving his country and training Soldiers.

4.  The applicant states during the time he has been out of the military his employer has promoted him three times.  He has received three performance awards and completed his Bachelor of Science Degree in Management.  He recently enrolled in a master's degree program at American University.  He believes a chapter of his life is still left undone, and that the Board will find his assigned RE code is inconsistent with the Army Regulation and separation authority cited.  He humbly requests that the Board upgrade his assigned RE code.

5.  The applicant provides a copy of his 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.  On 30 June 1992, the applicant enlisted in the Regular Army (RA).  He was initially awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  He was subsequently reclassified into MOS 92A (Automated Logistical Specialist).

3.  In 1995, the applicant was assigned to Fort Campbell, Kentucky, where he was enrolled in the Army Substance Abuse Program (ASAP) from 3 December 1996 to 22 February 1997.  He successfully completed his treatment.

4.  On or about 14 February 2003, the applicant was assigned to the Federal Republic of Germany for duty with 1st Battalion, 10th Special Forces Group (Airborne).

5.  On 19 December 2003, the applicant was promoted to staff sergeant, pay grade E-6.

6.  On 3 March 2005, the applicant was arrested by the German police for driving while intoxicated.  He was counseled by his commander on 4 March 2005 and command referred to ASAP.  He was enrolled in ASAP on 9 May 2005.

7.  On 29 June 2005, the applicant accepted nonjudicial punishment (NJP) for driving his privately owned vehicle while drunk, operating a vehicle with a suspended driver's license, and for willfully disobeying a lawful order not to consume any alcoholic beverages while enrolled in ASAP.  He was reduced to the rank of sergeant, pay grade E-5.

8.  On 7 July 2005, the applicant's commander was notified him that he was declared an ASAP failure.

9.  On 7 July 2005, the applicant's commander informed the applicant that he was determined to be an alcohol rehabilitation failure and he was initiating action to discharge him from the military for unsatisfactory performance.

10.  On 7 July 2005, the applicant acknowledged receipt of the commander's intent to separate him and he was advised of the basis for the contemplated separation action, the type of discharge he could receive, and its effect on further enlistment or reenlistment, and of the procedures/rights that were available to him.  The applicant consulted with counsel and waived consideration of his case by an administration separation board contingent upon receiving an honorable discharge. 

11.  On an unknown date, the applicant was recommended for discharge under the provisions of Army Regulation 635-200, chapter 9 due to alcohol rehabilitation failure with an honorable discharge.  

12.  On 13 July 2005, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 9, due to alcohol rehabilitation failure with an honorable characterization of service.  

13.  On 31 July 2005, the applicant was discharged accordingly.  He was assigned a Separation Program Designator (SPD) code of "JPD" and an 
RE code of "4."  His character of service was honorable.

14.  Army Regulation 635-200 (Personnel Separations) 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.

15.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE codes including RA RE codes.  An RE code of "4" applies to persons separated from their last period of service with a non-waivable disqualification.  

16.  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 SPD code of "JPD" was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, chapter 9, due to alcohol rehabilitation failure.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes an RE code of "4" as the proper RE code to assign Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of "4" should be changed so that he may enlist in the USAR.  He argues that his RE code is inconsistent with the governing regulation.

2.  The applicant's statement that he always performed to the highest standard is strongly contradicted by his multiple alcohol-related incidents resulting in him being enrolled in ASAP (twice), receipt of NJP, and reduction in rank.

3.  The RE code of "4" establishing his ineligibility for enlistment/reenlistment was correctly entered on his separation document in accordance with the governing regulations.  His contention that his RE code should be a minimum of "2" is without any merit.

4.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for his RE code.  While the applicant’s desire to continue in the service to his country is commendable, there are no provisions authorizing the change of a reentry code for this purpose.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20110024169



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ABCMR Record of Proceedings (cont)                                         AR20110024169



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