ABCMR Memorandum of                                                             AR2002079068   
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 JUNE 2003                  
	DOCKET NUMBER:   AR2002079068

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

| Mr. Carl W. S. Chun | | Director
| Mr. Kenneth H. Aucock | | Analyst

  The following members, a quorum, were present:

| Ms. Margaret K. Patterson | | Chairperson
| Mr. Ronald E. Blakely | | Member
| Mr. Frank C. Jones II | | Member

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, the applicant requests that the reentry code of RE-3 on his 13 November 1991 DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to RE-1.   

He states that he was under a lot of stress at the time of his discharge, being stationed in Korea with an extremely abortive chain of command.  He opted for a discharge; however, having since matured, he requests a review of the circumstances and a change in his reentry code.  He submits copies of his evaluation reports and a narrative.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant had almost six years of service in the Marine Corps prior to his enlistment in the Army on 15 February 1985.  He underwent training as a parachutist and in May 1985 was assigned to the 2nd Battalion, 75th Infantry (Ranger) at Fort Lewis, Washington as an infantryman.  He served a tour of duty in Korea from October 1985 to October 1986, where he was awarded the Army Achievement Medal and the Army Commendation Medal.  He returned to the United States at Fort Polk, Louisiana, was promoted to sergeant, and completed the Primary Leadership Development Course (PLDC).  In April 1988 the applicant completed the Long Range Surveillance Leader Course given at Fort Benning, Georgia.  He received a second award of the Army Achievement Medal in April 1988.  In October 1988 he completed the Opposing Forces Weapons Course at Aberdeen Proving Ground, Maryland, and in December of that year, completed the Basic NCO Course (BNCOC).  In June 1990 the applicant received the third award of the Good Conduct Medal.

The applicant's three evaluation reports that he submits with his request, covering the period February 1987 through August 1990 while assigned to Fort Polk, show that his rating officials considered him an outstanding soldier, with unlimited potential, who should be promoted to staff sergeant.

The applicant's medical records show that he was treated for an adjustment disorder with depressed mood on 12 August 1985.  The examining physician noted some suicidal ideation, which appeared to be diminishing, and that much of his difficulty appeared situational and was resolving as leaving the Rangers.

A 7 August 1989 medical record shows that he was seen by mental hygiene and hospitalized for suicidal ideation.  That record shows that the applicant had an    8-month history of marital discord, that when he returned from Panama in July 1989 he began having thoughts of suicide.  He stated that he felt worthless as a father and husband.  He stated that he was discouraged with the Army and that nothing was going right.  The record shows that the applicant was treated with individual and group therapy, that he did well on the ward and gradually improved, and that after a week on the ward he was discharged to continue outpatient therapy.  His condition was diagnosed as adjustment disorder with depressed mood and suicidal ideation, resolved; and marital problems.  

In June 1991 the applicant was assigned to Korea, with duty as an assistant surveillance team leader with the 102nd Military Intelligence Battalion.

A 15 July 1991 medical record shows that the applicant expressed some concerns, which required consultation at the Mental Health Clinic.   

A 14 August 1991 report of mental status evaluation indicated that the applicant was evaluated by division mental health on 15 and 27 July 1991, and diagnosed as having a personality disorder.  The report indicated that while the applicant was able to function effectively in structured and nondemanding environments, he experienced difficulty in judgment and problem solving in stressful conditions. The report indicated that it was unlikely that any short-term counseling would benefit him, and that continued retention would require substantive levels of supervision and management.  The report indicated that administrative separation under the provisions of Army Regulation 635-200, chapter 5, was warranted.  The applicant was mentally responsible, and had the mental capacity to understand and participate in proceedings.

On 21 October 1991 the applicant's commanding officer notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 5-13 because of a personality disorder.  

The applicant consulted with counsel, stated that he had been advised of the basis for the contemplated action, its effects, of the rights available to him, and of any actions taken by him in waiving his rights.  He stated that he waived consideration of his case by an administrative separation board.  He declined to submit a statement in his own behalf.

The applicant's commanding officer recommended to the separation authority that the applicant be discharged.  On 30 October 1991 the separation authority approved the recommendation and directed that the applicant be issued an Honorable Discharge Certificate.

The applicant returned to the United States and was discharged at the Presidio of San Francisco on 13 November 1991.  His reentry code reflected on his       DD Form 214 is RE-3.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 establishes policy and prescribes procedures for separating members for personality disorder (not amounting to a disability under Army Regulation 635-40), a deeply-ingrained maladaptive pattern of behavior which interferes with the individual's ability to perform.  Prior counseling with a view to correcting deficiencies is mandatory.  The service of a soldier separated for a personality disorder will be characterized as honorable.   

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 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  It prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE codes, including RA RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  The RE code for persons separated for a personality disorder is RE-3.

That regulation also states in pertinent part that prior service personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have correct RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized.  Recruiting personnel are authorized to process requests for waiver. 

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, nor has the applicant provided any, to indicate that his discharge because of his personality disorder or that his reentry code of RE-3 was in error or unjust and as such there is no basis to correct his record to change his reentry code.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 13 November 1991, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 13 November 1994.

The application is dated 19 August 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__MKP__  __REB __  ___FCJ__  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID | AR2002079068
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 20030624
TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE | YYYYMMDD
DISCHARGE AUTHORITY | AR . . . . .
DISCHARGE REASON |
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1. | 110.00
2. |
3. |
4. |
5. |
6. |