BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20150013613 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ___x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20150013613 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20150013613 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 records by: * removing any suspensions of favorable personnel actions (flags) currently active in his records * changing his reentry code from "4" (nonwaivable disqualification for reenlistment) to "1" (no waiver required) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 April 2014 2. The applicant states, in effect: a. He was separated under the provisions of chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). His DD Form 214 shows an RE code of "4" which, according to AR 601-210 (Active and Reserve Components Enlistment Program), means he has a nonwaivable disqualification for reenlistment. Included among those Soldiers who receive this RE code are those who have a bar to reenlistment imposed by the Department of the Army. b. He asserts his "flag codes and bar for reenlistment were invalid upon separation, and were not removed after [his] Article 15 [nonjudicial punishment (NJP) given under the provisions of Article 15, Uniform Code of Military Justice (UCMJ)]." His flag codes of "VA" [V = Alcohol Abuse Adverse Action; A = Adverse Actions] started on 29 July 2013 and were invalid on his separation. [The applicant's Enlisted Record Brief (ERB), Section I (Assignment Information), block titled: "Flag Code" shows the codes "VA" Section III (Service Data), block titled: "Reenl Elig (Reenlistment Eligibility)/Prohib (Prohibitions) lists "9B" (referred to as an IMREPR code, this code equates to an Adverse Action Flag based on Flag Codes A, U (drug abuse), and V] c. He requests relief from the Board because his flags were not removed either during or after the completion of his NJP. AR 600-8-2 (Suspension of Favorable Personnel Actions (Flag)), paragraph 2-9 (Removal of a Flag), outlines the rules for removing a flag after an administrative reduction. He was, in fact, reduced from sergeant (SGT) to specialist (SPC) on 19 August 2013 based on receiving NJP. He asserts it was because his flags were not removed that he was improperly given an RE code of "4." 3. The applicant provides an extract from AR 600-8-2, his DD Form 214 for the period ending 19 April 2014, and his ERB. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 17 July 2008. 2. On 13 May 2013, his chain of command enrolled him in the Army Substance Abuse Program (ASAP) for suspected alcohol abuse. At the time, he was pending disciplinary action for driving under the influence. 3. On 13 May 2013, his commander initiated a flag for alcohol abuse adverse action (flag code "V"). 4. The applicant accepted NJP on 19 August 2013 for driving while having a blood alcohol level of .10 grams or more per 210 liters of breath and being unable to perform his duties due to overindulgence of intoxicating liquor or drugs. His punishment included reduction from SGT to SPC. 5. On 15 October 2013, his commander initiated a flagging action for involuntary separation (flag code "B" – field-initiated). 6. On 2 December 2013, the Clinical Program Manager for ASAP declared the applicant a rehabilitative failure. 7. The applicant's commander notified him that action was being initiated to separate him under the provisions of chapter 9, AR 635-200. The stated reasons were driving while intoxicated, intoxication on duty, and multiple enrollments in ASAP followed by a determination he was a rehabilitation failure. The applicant acknowledged notification on 25 March 2014. 8. In an undated memorandum, the separation authority directed the applicant's separation with a general discharge under honorable conditions. On 19 April 2014, he was discharged accordingly. 9. His DD Form 214 shows: a. His rank/grade was SPC/E-4 with 19 August 2013 as the date of rank. b. He was awarded or authorized: * Army Commendation Medal * Army Achievement Medal (2nd Award) * Meritorious Unit Commendation * Army Good Conduct Medal (1st Award) * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Driver and Mechanic Badge with Wheeled Vehicle Bar c. The section titled Special Additional Information shows: * character of service is under honorable conditions (general) * separation authority is AR 635-200, chapter 9 * separation code (SPD) is "JPD" * RE code is "4" * narrative reason for separation is alcohol rehabilitation failure 10. His official military personnel file contains an ERB, dated 21 April 2014, which lists an IMREPR code of "9B" and flag codes of "VA." 11. The applicant applied to the Army Discharge Review Board (ADRB) on 12 November 2014 requesting an upgraded character of service and a change in the narrative reason for separation. The ADRB denied his request. The ADRB's Case Report and Directive also notes the SPD code of "JPD" and RE code "4" were appropriate, and the regulation authorized no deviation. REFERENCES: 1. AR 635-200 prescribes policies and procedures for active duty enlisted separations. Chapter 9 provides the authority and outlines procedures for discharging Soldiers for alcohol rehabilitation failure. It states a Soldier may be discharged under this provision when enrolled in ASAP and the commander determines both that further rehabilitative efforts are not practical, and the Soldier is deemed to be a rehabilitation failure. 2. AR 600-8-2 prescribes policies, operating rules, and steps governing the suspension of favorable personnel actions referred to as "flags." a. Paragraph 2-2 (Circumstances Requiring a Nontransferable Flag) states Soldiers flagged under this paragraph may not be reassigned unless specifically authorized by this regulation. More than one flag may be required concurrently. (1) Reasons for a nontransferable flag include when the Soldier is pending involuntary discharge under AR 635-200. The flag's effective date is when the commander signs the intent to separate notification. The flag code is "B" when the unit initiates the action. The flag is removed when the Soldier is transferred to the transition point for separation processing. (2) Flag code "A" is for adverse actions. A command must flag Soldiers for adverse actions, to include the initiation for proceedings under Article 15, UCMJ. (3) Flag code "V" addresses when the flag is the result of an alcohol abuse adverse action. Commanders are to initiate this flag when Article 15, UCMJ proceedings are initiated. The flag is removed when the punishment is complete. b. Paragraph 2-9 states a flag will be removed on the date of an administrative reduction. With regard to nonjudicial punishment, a flag is removed once any associated punishment has been completed. 3. AR 600-8-19 (Enlisted Promotions and Reductions), states in paragraph 10-1 (Administrative Reductions) that an administrative reduction is not the result of a court-martial sentence or nonjudicial punishment under Article 15, UCMJ. 4. AR 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 includes a list of the Regular Army RE codes: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification 5. AR 635-5-1 (SPD Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code of "JPD" is the correct code for Soldiers separating under the provisions of chapter 9 of AR 635-200 due to alcohol rehabilitation failure. 6. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. SPD code "JPD" has a corresponding RE code of "4." 7. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests the RE code shown on his DD Form 214 be changed to a code "1." His current code is "4," which gives him a nonwaivable disqualification for enlistment, whereas a "1" would enable him to enlist without restriction. He asserts the RE code was incorrectly based on invalid flag and IMREPR codes. He additionally asks, in effect, that flag and IMREPR codes be removed from his ERB. 2. With regard to the amendment of entries on his ERB, this, as all forms in the applicant's OMPF, represent a snapshot of the Soldier's personnel data as it was at the time the particular form was produced. These forms are not accessible after a Soldier's discharge. By contrast, the DD Form 214 serves as the primary document that confirms a Soldier's service, and is therefore the primary document to which changes are made when records corrections are required. 3. The evidence of record appears to confirm the flag codes "V" and "A," as well as the IMREPR code "9B" are invalid. However, neither flag nor IMREPR codes serve as a basis for determining the RE code that will appear on a DD Form 214. Rather, the RE code is based on the SPD. a. The applicant was separated under the provisions of chapter 9, AR 635-200. AR 635-5-1 states the correct SPD for this provision is "JPD." b. The SPD/RE Code Cross Reference Table confirms the RE code associated with "JPD" is an RE of "4." Based on the foregoing, there is no evidence of an error or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013613 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013613 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2