IN THE CASE OF:  	Mr. 

      BOARD DATE:  	6 November 2013

      CASE NUMBER:  	AR20130007119
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the narrative reason for discharge was both proper and equitable and voted not to change it.




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.


THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests a change to the narrative reason for separation to include the reentry eligibility (RE) code.

2.  The applicant states, in effect, he went through a lot of difficulty regarding his ex-wife; his ex-wife cheated on me with multiple Soldiers in his platoon and unit.  He went to his chain of command and begged for help; she then started to harass him at work and contacted his chain of command to harass him.  He was a model Soldier and had never been in any type of trouble prior to this incident.  He was young and immature and handled the situation wrong.  He feels his discharge was unjust because he never had a problem with drugs.  He has never had a drug problem, never failed rehab, his command decided to chapter him before he went to a rehabilitation facility, and therefore he could not fail it. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 April 2013
b. Discharge received:			Honorable
c. Date of Discharge:			18 February 2011
d. Reason/Authority/SPD/RE:		Drug Rehabilitation Failure, Chapter 9, AR 635-200
					JPC, RE-4
e. Unit of assignment:			I Battery, 1-11th Armored Cavalry Regiment, Fort 
					Irwin, CA
f. Current Enlistment Date/Term:  	12 December 2008, 3 years
g. Current Enlistment Service:  	2 years, 2 months, 7 days
h. Total Service:			3 years, 3 months, 17 days
i. Time Lost:				None
j. Previous Discharges:		USAR-(071102-071112)/NA									RA (071113-081211)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	14S10, Avenger Crewmember
m. GT Score:				97
n. Education:				HS Graduate
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, KDSM, NPDR, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant enlisted in the US Army Reserve on 2 November 2007 and was discharged on 12 November 2007 to enlist in the Regular Army. The applicant enlisted in the Regular Army on 13 November 2007, for a period of 2 years and 28 weeks.  He was 18 years old at the time of entry and a HS Graduate.  He was initially trained in and awarded military occupational specialty (MOS) 14S10, Avenger Crewmember.  He reenlisted on 12 December 2008, for a period of 3 years and was 19 years old at the time.  His record does not contain any evidence of acts of valor or meritorious achievements.  He served a tour in Korea and achieved the rank of SPC/E-4.  He was serving at Fort Irwin, CA when his discharge was initiated.  

THE APPLICANT’S REQUEST AND STATEMENT:

1.  On 16 November 2010, the unit commander in consultation with the Clinical Director/Army Substance Abuse Program (ASAP), declared the applicant a rehabilitation failure.  

2.  On 16 January 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 9, AR 635-200, for being an alcohol or other drug rehabilitation failure as shown by being enrolled in the ASAP and being diagnosed with an alcohol dependence.

3.  The unit commander advised the applicant of his rights and recommended his discharge from the Army with a service characterization of honorable and waiver of any rehabilitation measures.  

4.  On 26 January 2011, the record indicated that the applicant waived legal counsel (although he consulted with legal counsel) was advised of the impact of the discharge action, and did not submit a statement on his own behalf.  The unit commander subsequently recommended separation from the Army.  

5.  The separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of honorable. 

6.  The applicant’s record does not contain any documented evidence of unauthorized absences, lost time or actions under the Uniform Code of Military Justice (UCMJ).

7.  The applicant was separated on 18 February 2011, under Army Regulation 635-200, Chapter 9, for drug rehabilitation failure, with an honorable discharge, a SPD code of JPC and a reentry code of 4.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  He received a DD Form 1059 (Service School Academic Evaluation Report) covering the period of 21 July 2010 through 9 August 2010, for completing the Warrior Leader Course which the applicant “Achieved Course Standards.”

2.  The applicant’s record contains a negative counseling statement, dated 22 November 2010 for failing the Army Substance Abuse Program (ASAP).

3.  The record also contains a memorandum, dated 16 November 2010 which indicated the applicant was a rehabilitation failure.
EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided an online application, and two supporting statements.

POST-SERVICE ACTIVITY: 

The applicant stated he is enrolled in college majoring in Criminal Justice at the University of Phoenix.

REGULATORY AUTHORITY  

1.  Army Regulation 635-200, Chapter 9 sets forth the basic authority for the separation of enlisted personnel and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  

2.  A member who has been referred to the Army Substance Abuse Program (ASAP) for alcohol or 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.  

3.  Army policy states that an honorable or general, under honorable conditions discharge is authorized depending on the applicant’s overall record of service.  However, an honorable discharge is required if limited use information is used in the discharge process.

4.  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 identifies the SPD code of "JPC" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 9, for drug rehabilitation failure.  The regulation further stipulates that no deviation is authorized.  

5.  Further, the SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JPC" will be assigned an RE Code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.  

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for a change to the narrative reason for separation to include the RE code was carefully considered.  However, after examining the applicant’s military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for separation to include the RE code.  

2.  The applicant was enrolled in the Army Substance Abuse Program (ASAP) and was aware of the consequences of any action which would demonstrate any inability or refusal to participate in, cooperate in, or successfully complete such a program.  As a result of the applicant’s actions and after consultation with the drug and alcohol abuse counselor, the command declared the Soldier a rehabilitation failure.  The evidence of record establishes the fact the applicant was properly counseled and afforded a reasonable opportunity to overcome his problems.

3.  The applicant requested a change to the narrative reason for separation to include the RE code.  However, 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 identifies the SPD code of "JPC" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 9, for drug rehabilitation failure.  The regulation further stipulates that no deviation is authorized.  

4.  The applicant contends he went through a lot of difficulty regarding his ex-wife; his ex-wife cheated on me with multiple Soldiers in his platoon and unit; and he went to his chain of command and begged for help; she then started to harass him at work and contacted his chain of command to harass him.  While the applicant may believe his problems with ex-wife was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief  through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.

5.  Further, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.

6.  The applicant further contends he was a model Soldier and had never been in any type of trouble prior to this incident.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  

7.  The applicant also contends he was young and immature and handled the situation wrong.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

8.  The applicant additionally contends he feels his discharge was unjust because he never had a problem with drugs.  He has never had a drug problem, never failed rehab, his command decided to chapter him before he went to a rehabilitation facility, and therefore he could not fail it.  However; there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.

9.  Moreover, the evidence of record (memorandum, rehabilitation failure) shows that he was self referred to ASAP due to daily use of cannabis and he wanted to stop smoking weed because it was interfering with his marital relationship, and was concerned about the impact of his use on his military career.

10.  Furthermore, on 24 August 2010, the applicant was enrolled in the ASAP outpatient program requiring weekly group attendance, and was referred to the coping skills group through behavioral health and required to have a unit urinalysis test 2-3 times per month.  He was compliant with his treatment until he had a relapse on 1 November 2010; and due to his continued used cannabis and his difficulty meeting Army conduct standards, his commander requested he be deemed a rehabilitation failure.  His commander also recommended the applicant pursue treatment through the Veterans Administration upon discharge from active duty.

11.  The supporting statements provided with the application speak highly of the applicant’s performance of duty.  As such these statements did not provide any evidence sufficiently compelling to overcome the presumption of government regularity.

12.  Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

13.  Therefore, the narrative reason for discharge being both proper and equitable, recommend the Board deny relief.







SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:  6 November 2013     Location: Washington, DC

Did the Applicant Testify:  NA

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  NA	No Change:  NA
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					NA



















Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130007119



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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