ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20190005886 APPLICANT REQUESTS: through counsel: * that his reentry (RE) code be upgraded from RE-4 to RE-1, so he can reenlist in the military * that the Board grant him a medical retirement, a temporary disability retirement, or a regular military retirement APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Affidavit * 9-page Legal Brief * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant states his appeal is based on three errors. The underlying basis of the separation was procedurally defective at the time of discharge; the adverse action, to include the administrative discharge, was unfair; and the RE code is currently inequitable. 2. The applicant provides a personal affidavit wherein he states, in effect: a. After Basic Combat and Advanced individual training he was assigned to his first duty station, in Germany. While stationed in Germany, he received a cut on his chin after getting drunk and fighting with his friend, Specialist (SPC) O___. After an officer inquired, he lied and told the officer that he fell; however, someone told the officer the truth. The applicant claims he was just covering for SPC O___. b. He claims the lieutenant (LT) thought he had a drinking problem, so the applicant self-enrolled in the Army Substance Abuse Program (ASAP) in order to make himself look good. However, the paperwork had an error stating he was command referred to ASAP. ASAP recommended a higher level of treatment. c. On New Year's, everyone went home on leave. The applicant went out with SPC O___. The applicant was not supposed to drink, but he was slipped something. Two months later he woke up in the hospital from intoxication. The LT picked him up but no report was made and he was not in trouble with the law. The applicant told ASAP, and since he was denied a higher level of care, it wasn't a failure, but he had to go into inpatient treatment for a month and a half. d. After spending 5 weeks in treatment, he successfully completed the program. A week later, he was told that he and SPC O___ were assigned to security at the Company Military Ball. The security detail turned out to be selling champagne at the event. All of his buddies wanted to do a shot of champagne. The applicant took one sip of wine and 5 days later he was confronted by the LT and asked if he drank alcohol at the ball. e. He was not drunk and no incident occurred. He told the LT that because he had to stay behind in treatment while everyone deployed, he wanted to take a shot with his brothers. The LT ignored him and said, "So you just said fxxx it?" The applicant replied with, "If that's how you take it sir, then yes." f. The discharge process for him and SPC O___ started immediately. The applicant fought to be retained; however, all he received were apologies and a quote of "Once the process begins, I can't go back on the chapter." The ASAP counselor was furious with the explanation and wrote a letter of support stating that she did not consider the act an ASAP failure and that his chain of command failed him by having two ASAP enrolled Soldiers selling champagne and wine. g. The applicant continued to attend ASAP until a week before he left Germany, nearly 6 months after the military ball incident. 3. The applicant enlisted in the Regular Army (RA) on 5 October 2015. 4. Evidence contained in the applicant's records note the applicant was command referred to the ASAP on 23 November 2016, due to an incident, which caused him to be injured while intoxicated. The applicant was enrolled in ASAP for individual and group treatment, education and rehabilitation. The applicant remained on a no drinking order initiated by his command. 5. On 18 December 2016, the applicant was counseled about an incident at Club Mylo, on 17 December 2016, in which the applicant became so intoxicated an ambulance was called to take him to the hospital. The applicant was on a no drinking order and currently enrolled in ASAP due to a previous incident a little over a month prior. The applicant claimed he may have been drugged. The chain of command decided the best course of action was for him to attend the addiction medicine intensive outpatient program at Landstuhl Army Medical Center, Germany. 6. The applicant completed the addiction medicine intensive outpatient program on 3 March 2017, and the treating psychiatrist gave a favorable recommendation, for the applicant to deploy to Poland for 6 months. 7. On 24 March 2017, the applicant was counseled about the commander's intent to recommend separation from service for failing to adhere to the terms of the ASAP. On 16 March 2017, the applicant knowingly consumed alcohol in violation of the terms of the ASAP. When asked for the reason for the violation, the applicant stated that he decided to disregard the consequences of the violation. 8. On 27 March 2017, the applicant was counseled about the commander's intent to initiate a Bar to Continued Service due to the applicant's failure of the ASAP program. On 16 March 2017, the applicant was caught drinking while at the 2nd Squadron Military Ball. 9. On 10 April 2017, an independently licensed supervisory social worker completed a mental status evaluation of the applicant. The applicant was screened for Post- Traumatic Stress Disorder and Traumatic Brain Injury. The conditions were either not present or, if present, did not meet Army Regulation 40-501 (Standards of Medical Fitness) criteria for a medical evaluation board. She found the applicant positive for alcohol dependence. On 26 April 2017, she further stated: a. The applicant was considered an ASAP rehabilitation failure based on the recommendations of his chain of command and current Army Directive and Regulation 600-85 (The ASAP), "Soldiers who fail to participate adequately in or to respond successfully to rehabilitation will be processed for administrative separation and not be provided another opportunity for rehabilitation except under the most extraordinary circumstances, as determined by the Clinical Director in consultation with the unit commander." b. Army Regulation 600-85, paragraph 7-1, further states, "Soldiers diagnosed with alcohol abuse or dependencies are permitted one period of rehabilitation for an alcohol incident per career. A company commander may recommend a second period of rehabilitation for a Soldier if the commander evaluates that Soldier as possessing exceptional potential for further useful Army service and is evaluated by ASAP counseling staff as appropriate for another period of rehabilitation." c. "Any alcohol incident after two periods of rehabilitation during a career is viewed as a failure to successfully complete rehabilitation and requires mandatory processing for administrative separation." 10. On 5 July 2017, the applicant's commander notified him that he was initiating action to discharge him from the service for being an alcohol rehabilitation failure under the provisions of chapter 9, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). His commander recommended an honorable discharge. 11. On 6 July 2017, after consulting with counsel and being advised of his rights, he acknowledged receipt of the proposed action to separate him under the provisions of chapter 9, Army Regulation 635-200 for alcohol rehabilitation failure with an honorable discharge. 12. On 7 July 2017, his commander forwarded the separation request to the separation authority. He recommended the rehabilitative transfer requirement be waived because a transfer would be unlikely to produce a quality Soldier or serve any other useful purpose. He further stated the applicant was given multiple chances to rehabilitate and did not take them seriously. His commander stated the applicant is a liability to the unit, his comrades, and himself, who if unable to perform as a member of a unit had no place in the Army. 12. On 10 July 2017, the separation authority approved the applicant's discharge and directed the issuance of an honorable discharge. 13. He was discharged from active duty on 2 August 2017 under the provisions of Army Regulation 635-200, chapter 9, for alcohol rehabilitation failure with an honorable characterization of service. He was credited with 1 year, 9 months, and 28 days of net active service. His DD Form 214 contains the following information: * Item 26 (Separation Code) "JPD" * Item 27 (RE code) "4" 14. Counsel provides a legal brief in support of the applicant stating the RE code is inequitable and has served its purpose. Counsel further argues procedural defect with regard to the applicant’s administrative separation. Counsel states: a. There was a hasty command-initiated request for separation for ASAP failure. He argues the ASAP failure should have received a chance for rehabilitative transfer to allow the applicant to recover from his alcohol related issues. The applicant was never referred to a Medical Evaluation Board/Physical Evaluation Board (MEB/PEB), nor was he considered for rehabilitative transfer. b. The applicant should have been allowed to show that the incident, which took place at the military ball, was not a failure on the part of the applicant to maintain his sobriety. The command in this case did not have the proper authority to administratively separate the applicant in this manner. In accordance with Army Regulation 635-200, the command should not have considered the applicant a rehabilitation failure because the ASAP counselor considered him to still be part of the program. c. The discharge and RE code does not serve a further purpose. There is no valid equitable purpose in leaving the RE code in place. The applicant should have been assessed RE code "1" and he should be allowed to reenlist. d. The appeal should also consider that the applicant gave as much as he could to the U.S. Army and has sought to fix his life since being involuntarily separated. 15. The SPD code JPD is to be used for RA Soldiers involuntarily discharged for alcohol rehabilitation failure. The SPD/RE Code Cross Reference Table shows the SPD code and a corresponding RE Code. The table in effect at the time of his discharge shows the SPD code JPD has a corresponding RE Code of "4." 16. Army Regulation 40-501, paragraph 3-35, states substance related disorders may render an individual administratively unfit rather than unfit because of physical disability. Interference with performance of effective duty in association with these conditions will be dealt with through administrative channels. 17. Army Regulation 635-200, chapter 9 provides the authority and outlines the procedures for discharging enlisted personnel for alcohol or other drug abuse rehabilitation failure. There are no provisions requiring referral to the Army Physical Disability Evaluation System. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct, his enrollment in ASAP and subsequent release from the program as a rehabilitation failure and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the reason for the applicant’s separation or to reverse the determination of his program failure. The Board found that the RE Code was appropriate based on the reason for his discharge. The Board found no evidence, and the applicant did not provide evidence, to show that the applicant had a condition that failed to meet medical retention standards, thus there is no reason to consider a medical separation or retirement. The applicant had insufficient service to meet requirements for a military retirement. Based on a preponderance of evidence, the Board determined that the reason and RE Code the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XXX DENY APPLICATION 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. 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. Army Regulation 635-200, chapter 9 provides the authority and outlines the procedures for discharging enlisted personnel for alcohol or other drug abuse rehabilitation failure. 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 member is enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) and/or the commander determines that further rehabilitation efforts are not practical, rendering the member a rehabilitation failure. This determination will be made in consultation with the rehabilitation team. A member who: is enrolled in the ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program when there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical, or long-term rehabilitation is necessary and the member is transferred to a civilian medical facility for rehabilitation. The service of members discharged under this section will be characterized as honorable or under honorable conditions. There are no provisions requiring referral to the Army Physical Disability Evaluation System. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB. 3. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10 U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code JPD is to be used for RA Soldiers involuntarily discharged for alcohol rehabilitation failure. 5. 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. The table in effect at the time of his discharge shows the SPD code JPD has a corresponding RE Code of "4." NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190005886 7 1