RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060015671 


	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.


Mr. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller 

Analyst

The following members, a quorum, were present:


Ms. Linda Simmons

Chairperson

Mr. Jerome Pionk

Member

Mr. Eddie Smoot

Member

	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 that his Reentry (RE) code be changed for reenlistment.  

2.  The applicant states, in effect, that he was discharged from the Army in 1999 for personality disorder.  He contends that he was interviewed by a psychiatrist in 2006 and was diagnosed with no mental disorder.  He states that he was denied an examination by the Military Entrance Processing Station doctor without even being seen. 

3.  The applicant provides letters, dated 31 October 2006 and 15 September 2006, from a Member of Congress; DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 22 March 1999 and 11 May 1991; a psychiatric evaluation conducted on 5 January 2006; his discharge packet; service personnel records; and medical records dated 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
22 March 1999.  The application submitted in this case is dated 20 October 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.  Having prior service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 23 April 1997 and trained as a heavy wheeled vehicle mechanic.  

4.  The applicant’s psychiatric evaluation is not available.  However, records show he was diagnosed with a personality disorder.  Discharge proceedings under the provisions of Army Regulation 635-200, paragraph 5-13, for personality disorder were initiated on 19 January 1999.  On 25 February 1999, the applicant consulted with counsel, waived his rights, and elected not to submit a statement on his own behalf.  


5.  On 22 March 1999, the applicant was honorably discharged in the rank of specialist under the provisions of Army Regulation 635-200, paragraph 
5-13, for personality disorder.

6.  Item 25 (Separation Authority) on the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry, "AR [Army Regulation] 635-200, PARA [paragraph] 5-13."  Item 26 (Separation Code) on his DD Form 214 shows the entry, "JFX."  Item 27 (Reentry Code) on his DD Form 214 shows the entry, "3."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "PERSONALITY DISORDER." 

7.  On 5 January 2006, the applicant underwent a psychiatric evaluation and was diagnosed with no mental disorder.

8.  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, 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 diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist.  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, 15, or 18 of this regulation; Army Regulation 380-67; or Army Regulation 635-40.

9.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JFX” is “Personality Disorder” and the regulatory authority is Army Regulation 635-200, paragraph 
5-13.  

10.  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 processing into the Regular Army and the U.S. 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.  

11.  Paragraph 4-9 (Prior military service) of Army Regulation 601-210 states, in pertinent part, that a waiver is required for any applicant or current member of a Reserve Component who was separated or discharged from a Component of the United States Armed Forces for personality disorder.

12.  RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.  

13.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

14.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated March 2001, shows that SPD [Separation Program Designator] "JFX" will be issued a RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant’s psychiatric evaluation is not available, evidence of record shows he was diagnosed with a personality disorder.  In the absence of evidence to the contrary, it must be presumed that this diagnosis was made by competent military medical personnel. 

2.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  

3.  Records show the applicant should have discovered the alleged error now under consideration on 22 March 1999; therefore, the time for the applicant to file a request for correction of any error expired on 21 March 2002.  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

LS_____  __JP____  __ES____  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 Simmons_________
          CHAIRPERSON




INDEX

CASE ID
AR20060015671
SUFFIX

RECON

DATE BOARDED
20070508
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.0300
2.

3.

4.

5.

6.