BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160004476 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: 7 November 2017 DOCKET NUMBER: AR20160004476 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: 7 November 2017 DOCKET NUMBER: AR20160004476 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 his reentry (RE) code be changed from "4" to "2." 2. The applicant states he was not properly counseled regarding his RE-4 code and its effect of preventing future service. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty.) CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 14 April 1998, the applicant enlisted in the Regular Army (RA). On 30 April 2000, the applicant reenlisted for a period of 4 years. 3. On 9 April 2001, the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Clinical Director submitted a letter to the applicant’s commander regarding the applicant’s synopsis of treatment, which states: a. The applicant self-referred to the ADAPCP on 2 January 2001 as a result of excessive drinking, the use of hashish, and cocaine over the holiday period. He was seen by the Vicenza Community Counseling Center and received a diagnosis of alcohol dependence with physiological dependence, marijuana abuse, and cocaine abuse. It was recommended that he attend Alcohol and Drug Abuse Preventive Training (ADAPT). b. He completed ADAPT from 22-24 January 2001, and subsequently attended an outpatient intense group from 8-14 February 2001; however, the applicant stated, "he would no longer remain abstinent, and admitted to continuing to drink throughout his enrollment." He also declined to continue Alcoholics Anonymous or to complete the rest of his objectives. c. His prognosis for future recovery was poor. While he was compliant for a good portion of his treatment plan, his decision to return to drinking ensured that his disease would continue to progress. The clinical director recommended that the applicant be considered a rehabilitation failure. 4. On 16 April 2001, the applicant received a developmental counseling form from his first sergeant (1SG). The counseling noted that the applicant's future for recovery was poor, further rehabilitation without his commitment was impractical, and he was being considered an alcohol rehabilitation failure. Therefore, separation action was initiated to remove him from the Army. The applicant agreed with the counseling and signed the form on 18 April 2001. 5. The applicant's commander notified him that he was initiating action under the provision of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) chapter 9, to separate him for alcohol or drug abuse rehabilitation failure. The applicant's commander advised him that he was recommending that he receive a general discharge, and that he had the right to: * consult with counsel * submit written statements in her own behalf * obtain copies of documents being sent to the separation authority * waive these rights and withdraw any such waiver any time prior to the date her separation was approved 6. On 30 May 2001, the applicant acknowledged that counsel advised him of the basis for the contemplated action against him under the provisions of chapter 9 of Army Regulation 635-200 for alcohol rehabilitation failure. He requested and was provided counsel prior to waiving his rights. He initially elected to submit a statement in his own behalf, but later waived that right. 7. The separation authority approved the recommendation for discharge and directed the applicant's discharge under the provisions of chapter 9 of Army Regulation 635-200, with an honorable characterization of service. 8. On 2 August 2001, the applicant was honorably discharged, under the provisions of chapter 9 of Amy Regulation 635-200 due to alcohol rehabilitation failure. He was assigned separation program designator (SPD) code "JPD" and RE code "4." His DD Form 214 shows he completed 3 years, 3 months, and 9 days of active duty service. REFERENCES: 1. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Army Reserve. It states that prior to discharge or release from active duty, individuals will be assigned an RE code based on their service records or the reason for discharge. 2. Army Regulation 600-85 (Army Substance Abuse Program), chapter 4, in pertinent part, governs the separation of Soldiers for alcohol and other drug abuse. Paragraph 4-26 specifically states that Soldiers who are rehabilitation failures will be processed for administrative separation when the unit commander determines that further rehabilitation efforts are not practical and that rehabilitation is a failure. 3. Army Regulation 635-200, dated 1 November 2000, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 9-1, contains the authority, and outlines the procedures for discharging individuals because of alcohol or other drug abuse. a. Paragraph 9-1(c)(2) states the commander determines that further rehabilitation efforts are not practical, rendering the Soldier a rehabilitation failure. This determination will be made in consultation with the rehabilitation team, pursuant to Army Regulation 600-85. b. Paragraph 9-2a (Basis for separation) states a Soldier who is enrolled in ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program in one of the following circumstances: * there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical * long-term rehabilitation is necessary and the Soldier is transferred to a civilian medical facility for rehabilitation 4. Army Regulation 601-210, dated 28 February 1995, then in effect, prescribed eligibility criteria governing the enlistment of persons, with or without prior service, into the RA and the U.S. Army Reserve (USAR). a. Paragraph 3-22 (U.S. Army RE Eligibility Codes) states, an RE-4 code applies to a person separated from the last period of service with a non-waivable disqualification. b. Paragraph 3-27 (Correction of Army RE Codes), also provides, in pertinent part that RE Codes may be changed only if they are determined to be administratively incorrect. c. Paragraph 4-24 (Non-waiver Medical, Moral, and Administrative Disqualifications) states that for a person with prior service, the last discharge from any component of the Armed Forces for drug or alcohol abuse, or as rehabilitation failure, during their last period of service, is a disqualification that cannot be waived. 5. Army Regulation 635-5-1 (SPD Codes), dated 1 December 2000, prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons. The regulation shows SPD code "JPD" as shown on the applicant's DD Form 214 specifies the narrative reason for discharge as "alcohol rehabilitation failure." 6. Army Regulation 635-5 (The SPD/RE Code Cross-Reference Table), dated March 2001, Table C-1 (SPD codes applicant to enlisted personnel) indicates the appropriate RE code for SPD code "JPD" is "4." 7. Army Regulation 15-185 (ABCMR), paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends that since he was not properly counseled on RE-4 codes, and their effects on future service, he should receive an RE-2 code instead. 2. The ABCMR begins its consideration of each case with the presumption of administrative regularity. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 3. The evidence of record shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time. The records contain no indication of procedural or other errors that would tend to jeopardize his rights. 4. The applicant was discharged due to alcohol rehabilitation failure. Table 3-1 of Army Regulation 601-210 states the RE code of "4" applies to anyone separated from their last period of service with a non-waivable disqualification. His discharge for alcohol rehabilitation failure is a non-waivable disqualification. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004476 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004476 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2