RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 NOVEMBER 2003                  
	DOCKET NUMBER:   AR2003088467

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Ms. Eloise C. Prendergast		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his RE (Reenlistment Eligibility) code be corrected to permit him to enlist in the Army National Guard.

2.  The applicant states, in effect, that when he was discharged from active duty it was never explained to him that his RE code would preclude him from enlisting in the future.  

3.  The applicant notes, in a self-authored statement and in correspondence to his congressional representative, that he was, in effect, discharged as an alcohol and drug rehabilitation failure.  However, he states that he was never given any rehabilitation but was asked if he would like to get out the military instead.  He indicates that he told his unit first sergeant that he wanted to get out of the Army. He notes he was depressed about his family not being able to join him in Germany and after having a few drinks returned to his barracks where he had an altercation with a warrant officer.  

4.  The applicant states that he was just watching television when the warrant officer started yelling at him to go to bed and then pushed him down when he asked why.  He states that he was just trying to defend himself but was sent to see the unit first sergeant the next day.  He states that the first sergeant asked him if he wanted out of the Army and he responded yes.  The first sergeant told him the only way to make that happen was as a drug and alcohol rehabilitation failure.

5.  The applicant states that he has regretted his decision everyday since, and now would like finish what he started more than 20 years ago.  

6.  The applicant provides his self-authored statement and the copy of the letter to his congressional representative in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
25 March 1983.  The application submitted in this case is dated 3 March 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.
3.  Records available to the Board indicate the applicant entered active duty for a period of 4 years on 30 December 1980 after several months as a member of the United States Army Reserve under the Delayed Enlistment Program.  He successfully completed training and was initially assigned to Fort Bliss, Texas.  In August 1982 he was reassigned to Germany.

4.  In September 1982 the applicant was punished under Article 15 of the Uniform Code of Military Justice for being drunk and disorderly, disobeying an order to return to his room and go to bed, and for being disrespectful in language toward a superior warrant officer, who was then in the execution of his office.  The applicant elected an open hearing, indicated that an individual would speak on his behalf, and that he would submit matters in defense and/or extenuation in person.  His punishment included extra duty, restriction, reduction to pay grade E-2, forfeiture of 7 days pay.  The reduction and forfeiture were suspended for 60 days.  The applicant did not appeal.

5.  Documents associated with the applicant’s administrative separation indicate that on 23 February 1983 he was released from Track II of the ADAPCP (Alcohol and Drug Abuse Prevention Control Program) for not making satisfactory progress.

6.  The evaluating counselor noted that the applicant had a recent alcohol event and after confrontation about the event refused further assistance.  Both the applicant’s commander and the ADAPCP counselor felt that further rehabilitation would be non-beneficial.

7.  On 7 March 1983 the applicant’s unit commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, Chapter 9.  The applicant acknowledged receipt of the proposed separation.  He did not submit any statements in his own behalf.

8.  The commander’s recommendation was approved and on 25 March 1983 the applicant was honorably discharged.  His RE code is reflected as “RE-3, 3C.”

9.  Army Regulation 600-85 (Army Substance Abuse Program) states, in pertinent part, that Soldiers who fail to participate adequately in, or to respond to, rehabilitation will be processed for separation.

10.  Chapter 9 of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) provides for the separation of Soldiers enrolled in the ADAPCP for 

alcohol/drug abuse because of an inability or refusal to participate in, cooperate in, or successfully complete such a program and there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  The service of Soldiers discharged under this section will be characterized as honorable or under honorable conditions.

11.  Pertinent Army regulations provide 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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of armed forces RE codes, including RA RE codes.  RE-3 applies to those individuals who were not considered fully qualified for reenlistment or continuous service at the time of separation, but for which a subsequent request for waiver could be submitted for the purpose of reenlistment at a later date under the provisions of Army Regulation 601-210.  RE-3 applied to individuals who were involuntarily separated under the provision of Army Regulation 635-200, Chapter 9.  

12.  RE-3C, a code in effect at the time of the applicant’s separation, applied to individuals who had completed over 4 months of service who did not meet the basic eligibility pay grade requirements for reenlistment as outlined in Army Regulation 601-280.  Army Regulation 601-280 stated that individuals in pay grade E-3 who had more than 24 months of active Federal service at the time of discharge were precluded from reenlisting.

DISCUSSION AND CONCLUSIONS:

1.  The evidence indicates that the applicant had an alcohol related incident in September 1982, which resulted in his being punished under Article 15 of the Uniform Code of Military Justice.  The applicant’s version of the event is not supported by any evidence in available records, or provided by the applicant.

2.  The applicant was enrolled in the ADAPCP and was determined not to be progressing and as such, was separated as an alcohol abuse rehabilitation failure, which was permitted under the provisions of both Army Regulation 600-85 and Army Regulation 635-200.  

3.  The Board notes that there was approximately 5 months between his altercation with the warrant officer and his being declared an unsatisfactory 

ADAPCP participant.  The applicant has provided no evidence that his separation was processed inappropriately or that he was not an alcohol abuse rehabilitation failure.

4.  Notwithstanding the applicant’s contention that his 1983 RE codes are unjust, there is no evidence available to the Board that confirms the codes are wrong.  The fact that the applicant argues that he was not informed of the effects of the RE codes is not evidence that the codes are wrong or that he would have been successful in having them changed if he had been given the opportunity to “contest” the codes at the time of his separation.  

5.  The evidence confirms that the applicant’s RE codes were assigned based on the fact that he was not qualified for continuous service at the time of his separation.  Not only was he involuntarily separated as an alcohol abuse rehabilitation failure, he also exceeded the years of service permitted for reenlistment of individuals separated in pay grade E-3.  

6.  The applicant’s RE codes are appropriate considering the basis for his separation, and the Board finds no basis to correct the existing codes.  The fact that he is unable to enlist in the National Guard is not sufficient justification to change the applicant’s RE codes.

7.  The applicant is advised that although the Board has determined that his 
RE codes were properly assigned; this does not mean that he is totally disqualified from returning to military service.  The disqualification upon which the RE codes were based may be waived for enlistment purposes.  The applicant is advised that if he desires to enlist, he should contact a local recruiter whom can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s RE codes.

8.  Records show the applicant should have discovered the error or injustice now under consideration on 25 March 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 March 1986.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__AAO__  __REB __  __ECP __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		___Arthur A. Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2003088467	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031113	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.03	
2.		
3.		
4.		
5.		
6.