IN THE CASE OF:	  

		BOARD DATE:  5 September 2013

		DOCKET NUMBER:  AR20130001751


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 reenlistment eligibility (RE) code be upgraded to a "1."

2.  The applicant states he needs his RE code changed so that he may be eligible to reenter the Puerto Rico Army National Guard (PRARNG). 

3.  The applicant provides copies of his 15 June 2006 DD Form 214 (Certificate of Release or Discharge from Active Duty) and his appeals documents related to his PRARNG separation, which includes a 13 November 2012 PRARNG denial letter, a 3 May 2008 Mental Status Evaluation, Separation Orders, and his personal statements.

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.  Having prior Regular Army service, the applicant enlisted in the PRARNG on 10 December 2003.  He served on active duty from 21 February 2005 through 
15 June 2006. During this period of service he served in Iraq from 27 May 2005 through 10 May 2006.  He was honorably released from active duty and returned to his PRARNG unit.

3.  The documentation surrounding the applicant's discharge from the PRARNG is not included in the available record.  However, on 4 May 2007, the applicant was honorably discharged the PRARNG and the authority and reason is listed on his National Guard Bureau Form 22 (Report of Separation and Record of Service) as paragraph 8-35i(1), Implementation Policy National Guard Regulation 600-200, for acts or patterns of misconduct, alcohol or other drug abuse.  He was assigned an RE code of 3.  He had completed 17 years, 7 months, and 10 days of creditable service for retired pay. 

4.  A memorandum, subject: Rebuttal Statement Regarding Recommendation for Involuntary Separation, dated 2 June 2007, shows the applicant appealed to his commander by stating that he had been notified of his intent to involuntarily separate him for alleged misconduct during a urinalysis test that was performed on 15 April 2007.  The applicant also stated:

	a.  On the date of the test he was suffering from indigestion that had affected him since 12 April 2007.  He was excused from unit drill on Friday, due to his illness.  On 14 April he reported to the armory and performed during the day. Later, in the evening and during the night, he felt dehydrated.  

	b.  On 15 April 2007, a urinalysis test was conducted and he was present for it.  However, he was dehydrated and he was unable to provide a sufficient volume of urine to complete the sample.  While waiting to complete the sample, he continued to feel bad and he had to go to the bathroom.  The first sergeant informed him that the unit's bathrooms were cleaned and closed and that he had to use the bathrooms where the urine samples were being taken.  He knew that he was sick and he did not want to use that area.  The bowel movements and dizziness continued and he decided to go home.  

	c.  He did not use illegal drugs and he had never tested positive.

	d.  It was not his intention to violate any regulation or misbehave toward his superiors.

	e.  He was willing and available for a urinalysis test at anytime the PRARNG ordered/designated.

5.  On 13 November 2012, the PRARNG advised the applicant that his request to change his 2007 discharge had been reconsidered and his request had been denied.  The PRARNG Adjutant General stated the applicant's separation process was conducted in accordance with PRARNG Regulation 
635-100 which afforded him the opportunity to present a rebuttal statement, guaranteeing due process.  His June 2007 rebuttal was considered but an objective evaluation of all the evidence demonstrated that he incurred misconduct by leaving the urinalysis area without authorization.  Furthermore, he was instructed to return to the test area and provide a specimen, an order he chose to disobey.

6.  Additionally, the PRARNG Adjutant General stated that PRARNG Regulation 
635-100, paragraph 2(F)(i) states that a positive result in a urinalysis test or the refusal to submit to such a test is a reason for involuntary separation.

7.  Army Regulation 601-280 states that RE codes contained on military discharge documents determine whether or not one may reenlist in a military service at a later time.  In general, those who receive an Army RE code of 1 may reenlist in the Army or another service with no problem.  Individuals with an RE code of 3 can normally reenlist but may require a waiver to be processed.  

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was instructed to return to the test area and he chose to disobey the order.  

2.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type and character of the discharge is commensurate with his overall record and the applicant was afforded the proper RE code based on the reason for separation.





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)                                         AR20130001751



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ABCMR Record of Proceedings (cont)                                         AR20130001751



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