BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20130000928 


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 change of his reentry eligibility (RE) code.

2.  The applicant states:

* He missed an Army Substance Abuse Program (ASAP) appointment that he self-referred for
* He was a good Soldier and would love to serve this country again
* He realizes his wrongdoing and he now has a family of four
* He wants to show his family he can do right and do what he loves

3.  The applicant provides an undated self-authored letter to his congressman.

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 (RA) on 9 April 2008 at the age of 18 years, 7 months, and 3 days.  He completed training and he was awarded military occupational specialty 89B (ammunition specialist).

3.  On 24 January 2011, he was counseled for failing to attend his 21 January 2011 ASAP appointment.  In fact he had not been to ASAP since 6 July 2010, and as a result, he was administratively dropped for non-compliance and designated a rehabilitation failure.  He was 21 years, 4 months, and 18 days of age at the time of this counseling.

4.  The applicant was further counseled on approximately 17 separate occasions between 3 February and 16 September 2011 for offenses including:

* Having a controlled substance in his residence
* Being detained for driving on a suspended license
* Failing to report to accountability formation
* Alcohol or other drug rehabilitation failure
* Initiation of discharge under the provisions of Army Regulation 635-200, chapter 9, due to ASAP failure
* Possessing a controlled substance

5.  On 29 July 2011, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military justice (UCMJ) for being absent without leave (AWOL) from 22 June until 6 July 2011 and for wrongfully possessing "spice," a controlled substance.

6.  On 4 October 2011, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 9, for substance abuse rehabilitation failure.  He acknowledged receipt of the notification.  After consulting with counsel, he elected not to submit a statement in his own behalf.

7.  On 26 October 2011, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 9 and directed the issuance of a general discharge.

8.  On 9 November 2011, the applicant was accordingly discharged due to drug rehabilitation failure.  He completed 3 years, 6 months, and 17 days of creditable 

active service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was assigned a separation code of "JPC" and an RE code of "4."

9.  The applicant provides a self-authored letter to his congressman explaining the events that led to his discharge.  He states he was stupid and young at the time and does not blame anyone but himself.  He asks for the opportunity to again serve his country, to be a hero.

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 Soldiers 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.  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.

11.  Army Regulation 635-5-1 (Separation Program Designator (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 that the SPD code "JPC" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 9 by reason of drug rehabilitation failure.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of "JPC."

12.  Army Regulation 635-200 further states 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 and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  Records show the applicant was AWOL from 22 June 2011 until 6 July 2011.  He accepted NJP for being AWOL and for possessing "spice," a controlled substance.  He was properly recommended for discharge by reason of drug rehabilitation failure.  As a result, he received an RE code in accordance with the applicable regulation.

3.  There is no error or injustice in his assigned RE code.  He was assigned an SPD code of JPC and the corresponding RE-4 code based on his reason for discharge.

4.  Records show the applicant was 21 years, 4 months, and 18 days of age at the time of his counseling for missing his ASAP appointment and being designated as drug rehabilitation failure.

5.  Although he believes he has matured since his discharge and desires to reenter the military, it is insufficient justification for granting the relief requested.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

6.  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)                                         AR20130000928



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ABCMR Record of Proceedings (cont)                                         AR20130000928



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