IN THE CASE OF: 

		BOARD DATE:	    2 September 2014

		DOCKET NUMBER:  AR20140001726 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by upgrading his reentry code 4 (RE-4) to something more favorable.

2.  The applicant states he believes the RE-4 he was given is not a fair consequence for his actions.  He acknowledges his alcohol rehabilitation failure.  He also agrees that he was discharged because it was believed he could not properly perform his duties.  However, he does not agree with being denied the chance to show he has evolved past this issue and can now perform any and all duties given to him.

3.  The applicant provides no additional documentation.

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 19 June 2009, the applicant enlisted in the U.S. Army Reserve (USAR).

3.  On 28 July 2009, the applicant was ordered to active duty for training.

4.  Records show the applicant was enrolled in Army Substance Abuse Program (ASAP) on 6 January 2010 at Fort George G. Meade.

5.  In July 2010, the applicant was reassigned to Aberdeen Proving Ground and was recommended for continuance in the ASAP.

6.  On 1 September 2010, the applicant was counseled concerning his minimal progress in the ASAP.  On 7 September 2010, the applicant had self-reported his drinking to intoxication on 4 September 2010.

7.  On 8 September 2010, the ASAP counselor recommended termination of treatment and the commander assessed the applicant as an alcohol/drug abuse rehabilitation failure.

8.  On 23 September 2010, the applicant was recommended for immediate discharge under the provisions of Army Regulation 635-200, chapter 9 due to alcohol or other drug rehabilitation failure.

9.  On 18 October 2010, the applicant acknowledged receipt of the commander’s recommendation and that he had been advised of his rights to consult with counsel.  He elected not to submit a statement in his own behalf and waived consulting counsel.

10.  The appropriate authority approved the recommendation.

11.  On 9 November 2010, the applicant accepted nonjudicial punishment for simple assault involving his running into a female Soldier and touching her in an inappropriate area of her body.

12.  On 12 November 2010, the applicant was discharged.  He had completed 
1 year, 3 months, and 15 days of creditable active duty service.  He was separated under the authority of Army Regulation 635-200, chapter 9, due to alcohol rehabilitation failure.  He was given a Separation Program Designator (SPD) Code of JPD and an RE-4.  His characterization of service was honorable.

13.  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 for unsuccessful completion of the program.  At the time of the applicant’s separation an honorable or general discharge was authorized.

14.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (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.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  

15.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and 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 AR 635-200, chapter 9, for ASAP failure.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-4 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 should be corrected by upgrading his RE-4 to something more favorable because he believes it is not fair.

2.  The RE-4, establishing his ineligibility for enlistment/reenlistment, was correctly entered on his separation document in accordance with governing regulations.

3.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE-4.  There are no provisions authorizing the change of an RE code simply because the consequences are perceived to be unfair.

4.  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)                                         AR20130022254



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ABCMR Record of Proceedings (cont)                                         AR20140001726



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