RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060012749 


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



	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect that his reentry eligibility (RE) code of 3 be changed so that he can enlist in the Air National Guard.

2.  The applicant states, in effect, that he was not seen by a psychologist relating to his discharge.  The applicant further states he was under a great deal of stress due to his mother’s illness and subsequent death.  The applicant further states that he was attempting to reenter the Army in 1988.  However, he then found out he was going to be a father.  The applicant states he has now matured, is physically fit, and has not been treated for any depression related issues whatsoever.

3.  The applicant provides a copy of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 28 August 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 21 March 1986, the date of his discharge.  The application submitted in this case is dated 28 August 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show he enlisted on 15 August 1985 for a period of 4 years.  

4.  On 5 February 1986, the applicant received a psychiatric evaluation by a psychiatrist at the Community Mental Health Activity, Fort Lee, Virginia.  The examiner diagnosed the applicant with immature personality disorder and found the applicant was not amenable to treatment, transfer, disciplinary action, training, or reclassification to another type of duty.  The examiner also found there was no mental defect or apparent physical defect sufficient to warrant separation through medical channels and no apparent medical contraindication for administrative separation.  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  The examiner recommended the applicant be discharged as expeditiously as possible.

5.  On 24 February 1986, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Chapter 5, paragraph 
5-13 of Army Regulation 635-200 (Personnel Separations) due to a personality disorder and that the least favorable characterization of discharge he could receive was an entry level separation with uncharacterized service.

6.  The commander advised the applicant of his right to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, to obtain copies of documents that will be sent to the separation authority supporting the proposed separation, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  The commander also advised the applicant he may waive any or all of these rights in writing and that failure to respond within 7 days would constitute a waiver of his rights.

7.  On 27 February 1986, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action to discharge him under the provisions of Chapter 5, paragraph 5-13 of Army Regulation 635-200 for a personality disorder.  The applicant stated that he was not submitting statements in his own behalf.  He acknowledged that he would be ineligible to apply for enlistment in the Army for 2 years after discharge.

8.  The applicant's commander recommended the applicant be discharged and not transferred to the Individual Ready Reserve (IRR) due to personality disorder. The commander also recommended the applicant’s service be characterized as honorable. 

9.  The appropriate authority approved the recommendation for discharge due to personality disorder and directed the applicant's service be characterized as honorable.

10.  On 21 March 1986, the applicant was discharged under the provisions of Chapter 5, paragraph 5-13 of Army Regulation 635-200 due to a personality disorder and assigned an RE code of RE-3.  He had completed 7 months and 
7 days of active service that was characterized as honorable.  

11.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a soldier may be separated for personality disorder, not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interferes with assignment to or performance of duty. The regulation requires that the condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier’s ability to perform duty.  The regulation also directs that commanders will not take action prescribed in this chapter in lieu of disciplinary action, requires that the diagnosis concludes the disorder is so severe that the Soldier’s ability to function in the military environment is significantly impaired, and states that separation for personality disorder is not appropriate when separation is warranted under chapter 4, 5, 7, 9, 10, 11, 13, 14, or 15 of this regulation. 

12.  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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of Armed Forces RE codes, including RA RE codes.

13.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waiverable. 

14.  Army Regulation 601-210 also states that RE Codes may be changed only if they are determined to be administratively incorrect.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged by reason of a personality disorder, which is a waivable disqualification.  Therefore, the assignment of RE-3 is correct.  As such, there is no basis for changing the applicant’s RE code.  

2.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  

3.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

4.  The applicant is advised that although his RE-3 code was properly assigned, this does not mean that he is totally disqualified from returning to military service. The disqualification upon which the RE-3 code was based may be waived for enlistment purposes.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  These individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s RE code.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 March 1986, the date of his discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 20 March 1989.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____jtm__  ____rsv _  ___lds____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__________Linda D. Simmons_______
          CHAIRPERSON


INDEX

CASE ID
AR20060012749
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070322
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.

2.

3.

4.

5.

6.