IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140010194 


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 defers his request and statements to counsel.

2.  In his request for reconsideration (received on 8 August 2013) the applicant stated:

   a.  His character of service should be upgraded to honorable due to the fact that should have been the correct character upon discharge based on his work record.  He never received an Article 15 and only a handful of counseling statements, several for oversleeping.  He was having difficulty sleeping and would then sleep through his alarm or several "sleep" alarms.  The tardiness was 5 to 10 minutes maximum.  He was performing well on his job and the quality of his service generally met the standards of acceptable conduct and performance.

   b.  He feels strongly that based on his records he received an incorrect separation reason which had a negative effect on his reentry (RE) code.  He was not a "drug rehabilitation failure" or a drug user.  He used marijuana once and he was actively and successfully participating in the Army Substance Abuse Program (ASAP).  His ASAP counselor did not agree with the chapter 9 discharge.

   c.  He should not have been separated or at least he should have been separated under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 5, Separation for Convenience of the Government, with an honorable discharge and an RE-1.  He was given an RE-4 at discharge that was not warranted at all.  It should now be upgraded to an RE-1 based on his actions, his work, and his life post-service life. 
   
   d.  On 31 August 2009, he took several prescribed sleeping pills in response to be being told he was being chaptered out that morning.  He just wanted to go to sleep.  His length of hospital stay, his behavior, his action following this, the failure to be placed on suicide watch, the failure to be issued any follow-up mental health care and being discharged from his unit the next day, etc. support that it was not a suicide.  It was an unintentional drug overdose.  He did not intend to overdose; he only intended to go to sleep.

   e.  He entered the hospital after a discussion with his ASAP counselor.  He was stressed and his counselor felt he would be best served by obtaining counseling in regard to stress management and coping skills.  They discussed a mental health admission; however, they felt there would be a lot of stigma associated with this.  They agreed that an admission under an "alcohol use" diagnosis (although he never received any counseling statements regarding alcohol nor was he having any problems with alcohol) would give him the same stress management and coping skills to help without the mental health stigma.

   f.  His ASAP counselor did not use "drug use" as a referring diagnosis as she knew that he had used the drug one time.  She did not want to infer that he was still using.  There are statements in his records that state he was admitted to Red River Hospital with "prescription drug abuse."  This cannot be accurate as he was on no prescription drugs until his admission.  He would like this inaccurate information removed from his record as well.  There are also statements that he was admitted to Red River Hospital for drug (cannabis) abuse.  This is also incorrect and he would like to have this removed.  He had the one-time use in March 2009 and that was it.

   g.  This misinformation/inaccurate information all played into his chapter 9 discharge.  It is not justified.  He should not have been involuntarily discharged in 2009 especially with a "general with honorable features" character and definitely not under the provisions of chapter 9 and an RE-4.  It is this information that warrants an upgrade of his character to honorable, a chapter 5 separation, and upgrade to an RE-1.  The Board's decision stated a suicide attempt on 13 January 2009 at Fort Sill.  He does not know where this information was obtained from.  He was stationed at Fort Bliss, TX on that date completing advanced individual training.  It is completely false and should be removed from his records.  There are documents in his record that contain the wrong spelling his name and the wrong SSN.  These should be corrected for accuracy of information.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's 8 July 2013 request for reconsideration of his earlier request for:

* upgrade of his under honorable conditions (general) characterization of service to fully honorable
* correction of the narrative reason for separation
* correction of his name and social security number (SSN)

2.  Counsel states:

   a.  In response to a letter, dated 8 April 2014, the applicant was requesting clarification of the Board's decision not to consider his request for reconsideration due to the fact that it was time-barred.  The applicant requests either his case be reconsidered or the Board provide a reasoning to support the conclusions that this case was presented beyond the 1-year mark.

   b.  The letter from the Board, dated 8 April 2014 stated that the case was originally considered by the Board on 10 July 2012.  The letter also stated that the request for reconsideration was received on 8 July 2013.  The determination was that Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) precluded the reconsideration of this case due to the fact that 1 year had elapsed since the original filing date of the request.  From 10 July 2012 through 8 July 2013, is only 363 days or less than 1 year.

   c.  The applicant requests reconsideration of the determination that over 1 year has elapsed from the decision date to the request for reconsideration date.  The applicant believes his case meets the criteria for reconsideration. 

3.  Counsel provides copies of the applicant's ABCMR Record of Proceedings and letter from the ABCMR.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110017599 on 10 July 2012.

2.  The applicant's previous case was adjudicated on 10 July 2012.  He drafted an online request for reconsideration on 8 July 2013 but his signed request was not completely received until 8 August 2013.  As a result, it did not meet the criteria for reconsideration in that it was not received within one year of the Board's decision.  Nonetheless, due to the confusion about the dates and because counsel provides new argument, the applicant's case will be reconsidered by the Board as an exception to policy. 

3.  The applicant's military records show he enlisted in the Regular Army on 17 September 2008.  He was awarded military occupational specialty 14T (patriot operator/maintainer).

4.  While assigned to the 2nd Platoon, A Battery, 3-2 Air Defense Artillery, Fort Sill, OK, he received counseling on/for:

* 24 April 2009 – failure to report and disobeying  a lawful order
* 30 April 2009 – accusation of and admitting to use of a controlled substance

5.  A DA Form 2823, dated 30 April 2009, shows he stated he would take a drug test in response to the charges, but he felt he would fail it because he had smoked marijuana 3 weeks earlier.  

6.  On 11 May 2009, he was enrolled in the ASAP for the use of marijuana.

7.  On 26 June 2009, he received counseling for failure to obey an order or regulation.

8.  On 9 July 2009, he was admitted to the Red River Hospital for cannabis, alcohol, and prescription drug abuse.  On 6 August 2009, he successfully completed the ASAP.

9.  He received counseling on/for:

* 10 August 2009 – failing  to obey an order or regulation and a traffic violation
* 31 August 2009 – attempted suicide, having an unauthorized knife in the billets, and three specifications of failing  to obey an order or regulation

10.  A review of his DA Forms 4856 (Developmental Counseling Form) revealed on two forms his first name is misspelled and they contain a different SSN than that of record of the applicant.

11.  In a memorandum, dated 1 September 2009, the ASAP Clinical Director, Fort Sill, OK, advised the applicant's company commander that the applicant's intentional abuse of prescription medication constituted a rehabilitation failure.  He stated the applicant's behavior toward change and failure to accept responsibility had resulted in unsatisfactory participation in Rehabilitation Treatment.  The applicant was afforded many opportunities to receive/obtain help.  That lack of motivation and continued aberrant behavior were indicative of commitment failure to treatment issues.

12.  On 28 September 2009, the applicant’s company commander initiated action against the applicant to separate him under the provisions of Army Regulation 635-200, chapter 9, for alcohol or other drug abuse rehabilitation failure, with a general discharge.  He stated the reasons for the recommended action was the applicant had been declared an ASAP rehabilitation failure.  He advised the applicant of his rights.

13.  On 29 September 2009, the applicant acknowledged receipt of the proposed separation, waived his right to counsel, and did not submit a statement in his own behalf. 

14.  In September 2009, the separation authority approved the applicant’s discharge.

15.  He was discharged accordingly in pay grade E-2 on 16 November 2009.  He was credited with completing 1 year and 2 months of active service.  His service was characterized as under honorable conditions, general.  His DD Form 214 lists in:

* Item 26 (Separation Code) – JPD
* Item 27 (RE Code) – 4
* Item 28 - Alcohol Rehabilitation Failure

16.  On 19 April 2011, the Army Discharge Review Board (ADRB), in response to his request for an upgrade, determined that he was properly and equitably discharged and denied his request for an upgrade of his discharged.  However, during the processing of his case the ADRB determined that items 26 and 28 of his DD Form 214 were erroneous and required an administrative correction.  The ADRB directed a correction to item 26 to reflect "JPC" and item 28 to reflect "Drug Rehabilitation Failure" and issuance of a new DD Form 214.

17.  A review of the Army Review Board's Agency Case Tracking System revealed his application for reconsideration was submitted online on 8 July 2013 but it was not received (with his signature page) until 8 August 2013.



18.  On 8 April 2014, by letter, the staff of the ABCMR administratively closed his request for reconsideration in accordance with Army Regulation 15-185, paragraph 2-15b.  He was advised that his request for reconsideration was not received within 1 year of the ABCMR original decision.

19.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 9 – the procedures for discharging individual because of alcohol and other drug abuse.  A Soldier who had been referred to ASAP for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service and rehabilitation efforts were no longer practical.  Army policy stated a general, under honorable conditions, or an honorable discharge could be granted.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

20.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  The regulation stated:

* Item 26 would list the proper SPD representing the reason for separation
* Item 28 would list the reason for separation based on the regulatory or statutory authority

21.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes a list of RE codes.

* An RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated
* An RE-3 applies persons who are not considered fully qualified for reentry or continuous service at the time of separation but disqualification is waivable
* An RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment

22.  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.  It states the SPD code of "JPD" is applicable for Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 9, with the narrative reason of "Alcohol Rehabilitation Failure.  The SPD code of "JPC" is applicable for members discharged under the provisions of Army Regulation 635-200, chapter 9, with the narrative reason of "Drug Rehabilitation Failure."

23.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers assigned an SPD codes of "JPD" and "JPC" will be assigned an RE code of 4.

24.  Army Regulation 600-8-104 (Army Military Human Resource Record Management) prescribes the policies governing the official military personnel file (OMPF) and it composition.  The regulation states once a document is placed in the OMPF it become a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  With regard to an upgrade of his general discharge:

   a.  The evidence shows upon receipt of notification from the ASAP Clinical Director the applicant's intentional abuse of prescription medication constituted a rehabilitation failure, the applicant's company commander initiated action to separate the applicant for alcohol or other drug abuse rehabilitation failure, with a general discharge.  He acknowledged the proposed separation action and waived his rights.  The separation authority approved his discharge and he was discharged accordingly on 16 November 2009.

   b.  Neither the applicant nor his counsel provided sufficient evidence or a convincing argument to show the applicant's general discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

   c.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his general discharge.

2.  With regard to correction of item 27 of his DD Form 214, the evidence of record confirms his RE code was assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 9.  The RE code associated with this type of discharge for "Alcohol Rehabilitation Failure" and/or "Drug Rehabilitation Failure" is a "4."  Therefore, he received the appropriate RE code associated with his discharge and he is ineligible for enlistment.  There is no basis for granting his request.

3.  With regard to correction of item 28 of his DD Form 214:

   a.  His DD Form 214 erroneously listed the narrative reason for his separation as "Alcohol Rehabilitation Failure" and his SPD Code as "JPD."  However, on appeal to the ADRB, the error was detected and his DD Form 214 was corrected to show the correct SPD Code as "JPC" and the correct narrative reason for separation as "Drug Rehabilitation Failure."  The ADRB determined his character of service and RE Code were proper and equitable and voted not to change them.

   b.  His narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 9 of Army Regulation 635-200 by reason of drug rehabilitation failure.  Absent his drug rehabilitation failure, there was no fundamental reason to process him for separation.  The underlying reason for his separation was his drug rehabilitation failure.  The only narrative reason authorized in his case is "Drug Rehabilitation Failure" which is properly listed on his DD Form 214. 

   c.  The current entry in item 28 of his DD Form 214 is appropriate considering all of the facts and circumstances of his discharge.  There is no error or injustice and no further correction is required.

4.  With regard to removal of documentation from his record stating he was admitted to Red River hospital for "prescription drug abuse" and drug (cannabis) abuse and his attempted suicide, the evidence shows this information as part of the facts and circumstances of his discharge.  There is no evidence of record and he provided none to show these documents contain inaccurate or false information/statements.  Therefore, there is an insufficient evidentiary basis to support granting this portion of the requested relief.
5.  With regard to correction of his name and SSN on documents in his records:

   a.  The evidence shows two DA Forms 4856 contain administrative errors on the spelling of his first name and SSN.  However, the DA Form 4856 is prepared and maintained for active Army enlisted personnel.  As the applicant no longer has a military status those documents would serve no useful purpose.

   b.  In view of the foregoing, there is no basis for granting his request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110017599, dated 10 July 2012.



      __________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)                                         AR20140010194



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ABCMR Record of Proceedings (cont)                                         AR20140010194



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