ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  7 August 2019

	DOCKET NUMBER:  AR20170009709


APPLICANT REQUESTS: a change to the narrative reason for his separation and reentry code

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he would like his reenlistment code changed, so he can return back to the Army.  He would like to go back in the Army, so he can defend his country.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 9 April 2002, reenlisted on 5 March 2007 and extended his enlistment on 23 October 2009.

	b.  He served overseas in Iraq from 27 April 2006 to 26 April 2007 and in Germany from 10 May 2010 to 7 December 2011.

	c.  On 31 May 2011, he received a counseling for two alcohol related incidents.

	d.  According to his Army Substance Abuse Program (ASAP) synopsis, he was enrolled in the program by his command on 21 July 2011, due to three alcohol related incidents within the year and he was dis-enrolled in the program on 17 July 2012, as an Alcohol Abuse Rehabilitation Failure.

	e.  On 25 July 2012, he received a counseling notifying him that he will be processed for separation from the Army under Chapter 9, Rehabilitation Failure, under the provisions of Army Regulation (AR) 135-178, AR 600-85 and AR 600-8-2.
	
	f.  On 26 September 2012, the commander notified the applicant of his intent to initiate separation under the provision of Army Regulation (AR) 635-200, (Personnel Separations – Enlisted Personnel), Chapter 9, paragraph 9-2. Alcohol or Other Drug Abuse Rehabilitation Failure.

	g.  The applicant acknowledged receipt and consulted with counsel.  Following consultation with legal counsel, he understood his rights and acknowledged the following:

* he understood if this discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected to submit a statement on his own behalf

	h.  The applicant’s commanding officer initiated action to separation him under the provisions of AR 635-200, chapter 9, paragraph 9-2, alcohol or other drug abuse rehabilitation failure and recommended the issuance of an honorable discharge.  

	i.  His record is void of the separation authority’s approval; however, his DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was discharged on 24 October 2012 under the provisions of AR 635-200, Chapter 9, paragraph 9-2, with a character of service of honorable and the narrative reason for separation, as alcohol rehabilitation failure.  It also shows he had 10 years, 6 months and 16 days of net active service with no lost time.  

	j.  He was awarded or authorized:

* Iraq Campaign Medal with Two Campaign Stars
* Army commendation Medal (2nd Award)
* Army Achievement Medal (4th Award)
* Army Good Conduct Medal (2nd Award)
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Non Commissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* German Army Marksmanship Badge Silver

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

5.  By regulation (AR 635-5-1) Separation Program Designator (SPD) codes, are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense (DOD) and the military services to assist in the collection and analysis of separation data.

6.  By regulation, a soldier a soldier who is enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program.  

7.  The Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found some relief was warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  It appears the applicant has taken steps to overcome the reason for his separation and the Board agreed to mask the listed reason for separation to mitigate possible discrimination when applying for employment.  The Board also agreed there was no error with the reentry code, and that the current reentry code preventing him from reentry into the Army was warranted

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 24 October 2012 by changing the entry in block 28 (Narrative Reason for Separation) to show “Secretarial Authority.”

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his reentry code.
	 
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  By regulation (AR 635-5-1) SPD codes, are three-character alphabetic combinations that identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense (DOD) and the military services to assist in the collection and analysis of separation data.  Paragraph 2-6 of this regulation, in pertinent part, lists the steps required for SPD code control and usage for enlisted personnel and is shown in table 2-3.  SPD Code JPD is the code and narrative reason associated with alcohol rehabilitation failure.  This is supported by AR 635-200, chapter 9.

3.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  
	a.  Paragraph 3-7a (Honorable) provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that' any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b (General) provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty.

	c.  Paragraph 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) of that regulation provides the procedures for discharging soldiers for alcohol or other drug abuse rehabilitation failure. The soldier is entitled to request a hearing before an administrative separation board if he or she has 6 or more years of total active and reserve military service per paragraph 2-2 d. A soldier who has less than 6 years of military service is not entitled to a board, Discharge is based on alcohol or other drug abuse such as the illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug when the soldier is enrolled in ADAPCP, and 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.

	d.  Paragraph 9-2 states that a soldier a soldier who is enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program.  

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170009709


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