PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:           6 July 2000                    
	DOCKET NUMBER:   AR1999031526

	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	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler 		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, correction of appropriate military records to show a reentry eligibility (RE) code which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.

3.  The applicant states, in essence, that the counseling document he received from his military counsel during the discharge process, stated that he could apply to reenlist after a 2-year break in service.  However, his RE code of RE-4 bars him from reenlistment.  He wants to reenlist for a second chance to show that he “loves” the Army.  He submits a copy of his discharge packet and his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He submits three letters in support, one from himself concerning the discharge process and two others, one from his father (or brother) and his mother who indicate the sincerity of the applicant in reentering the Army. 

4.  The applicant’s military records show that he enlisted in the Regular Army on 10 July 1997 for 4 years.  He was trained in military occupational specialty (MOS) 31C (Single Channel Radio Operator) and was assigned to Korea on 
29 December 1997.  He was advanced to pay grade E-2 on 10 January 1998.

5.  On or about 30 January 1968, he self-referred himself to the local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for an alcohol abuse problem.  He was screened by the ADAPCP and found to be alcohol dependent. 

6.  He began alcohol abuse treatment, both out-patient counseling and in-patient treatment.  He had full command support.  After three out-patient treatment sessions, he entered an in-patient treatment facility on 4 March 1998 for a scheduled 6-week treatment program.  However, he was discharged early from the program on 1 April 1998 for his unwillingness to confront a situation that was interfering with his progress in the treatment program.  He then began another out-patient treatment program, which included no alcohol consumption.  

7.  On the weekend of 3 April 1998, the applicant became intoxicated.  Therefore, the ADAPCP counselor recommended to his unit commander that he be declared a rehabilitation failure, and that separation action under the provisions of Army Regulation 635-200, chapter 9 be initiated.  

8.  His commander agreed and on 29 April 1998, the unit commander initiated discharge proceedings under the provisions of chapter 9, Army Regulation 635-200, by reason of his failure of an alcohol rehabilitation program.  The applicant was informed that his commander would be recommending an honorable discharge.  He was also advised that he had the right to consult with legal counsel.  

9.  On 4 May 1998, he consulted with legal counsel and was advised of the basis for the discharge action.  He did not submit a statement on his own behalf, requested continuing legal counsel and in paragraph 5 of the counseling statement, signed by the applicant and his legal counsel it stated:  “5.  I further understand that I will be ineligible to apply for reenlistment in the United States Army for a period of 2 years after discharge.”

10.  He was medically and psychologically cleared for separation during the discharge process.  

11.  On an unknown date, the separation authority approved the discharge action with an honorable discharge.  Accordingly, the applicant was returned to the United States and was honorably discharged on 15 May 1998, under the provision of chapter 9, Army Regulation 635-200, by reason of alcohol rehabilitation failure.  In item 26 of his DD Form 214, his separation code was shown as “JPD” and in item 27 his reentry code (RE Code) was shown as RE-4.  He was credited with 10 months and 6 days active service and he had no lost time or recorded indisciplines.  

12.  Army Regulation 635-200 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 ADAPCP for alcohol/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.  Either a general or an honorable discharge may be awarded.

13.  Figure 2-5 of Army Regulation 635-200, contains a sample of a counseling statement to be used by legal counsel when advising a soldier of his rights during the discharge process.  Paragraph 10 of that sample includes the following statement:  “10.  I further understand that I will be ineligible to apply for reenlistment  in the United States Army for a period of 2 years after discharge.” 

14.  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 60l-2l0 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including Army RE codes.  The respective services also may issue periodic instructions to recruiting personnel for additional restrictions and changes in criteria for reenlistment of former service members, based on the needs of the armed service involved.

15.  Army Regulation 635-5, in pertinent part specifies that a soldier being separated with a separation code of “JPD” will be awarded an RE code of RE-4. An RE code of RE-4 denotes that the soldier has a disqualification for reenlistment which is nonwaivable.  

16.  Prior service soldiers who have a waivable disqualification and an RE code of RE-3 or higher, must process through a local recruiter to obtain a waiver of the disqualification.  The US Army Recruiting Command or the US Total Army Personnel Command are authorized to grant waivers for reenlistment in the Regular Army, provided the soldier is morally and medically qualified to reenlist, and meets other administrative requirements in effect at the time of processing for reenlistment.  Also, any request for reenlistment will be granted only if there is a need for the prior service member’s grade and MOS in the Regular Army’s inventory. 

17.  Army Regulation 601-210, currently in effect, at paragraph 24x states that persons with prior service who were last discharged from any component of the Armed Forces for drug or alcohol abuse, or as a rehabilitation failure during their last period of service, are not eligible to be processed for reenlistment.   

CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.   The applicant was assigned an RE code in accordance with regulations then in effect.  At this time there is no basis to change the assigned RE code.

4.  However, the Board is not convinced that the applicant was properly advised during the discharge process.  If an RE code of RE-4 is to be assigned, which precludes reenlistment, then the soldier should not be advised that he can reapply for reenlistment after a “2 year” break in service.  

5.  Therefore, since it has been 2 years since he was discharged, the Board concludes that the applicant should be allowed to be processed for a waiver to reenlist, as an exception to policy and as if he had a waivable disqualification (RE-3 code).  

6.  Additionally, such a waiver to reenlist should only be approved if it is based on the needs of the service and that the applicant meets all medical and moral qualifications for reenlistment, to include a determination that he is no longer alcohol dependent. 

7.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that a waiver is granted to the individual concerned, as an exception to policy, to be processed for reenlistment in the Regular Army for a period not to exceed 3 years, provided he applies within 120 days of the date of the Board’s action and he meets all medical, moral and other administrative restrictions applicable in cases of a prior service solider being processed for reenlistment under the provisions of Army Regulation 601-210.   

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__cmf___  __emw__  __jpi____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Calvin M. Fowler___
		        CHAIRPERSON

INDEX

CASE ID	AR1999031526	
SUFFIX		
RECON		
DATE BOARDED	20000706	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19980515	
DISCHARGE AUTHORITY	AR635-200, CHAP 9	
DISCHARGE REASON	A69.00	
BOARD DECISION	GRANT IN PART	
REVIEW AUTHORITY	DASA	
ISSUES         1.	110.00	
2.	100.03	
3.	A01.13	
4.	A01.40	
5.		
6.