RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 November 2007
	DOCKET NUMBER:  AR20070009104 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Donald L. Lewy

Member

Ms. Rea M. Nuppenau

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 correction of his Certificate of Release or Discharge from Active Duty (DD Form 214) to show that he was not separated from active duty due to a physical condition that was not a disability.

2.  The applicant states that he wants the statement "Physical Condition, not mental" removed from his Honorable Discharge.  He further states that he was never injured in the military and that his medical records can support his contention.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 31 October 2002, the applicant enlisted in the Regular Army for 6 years.  He completed his initial training and was awarded military occupational specialty 11B1P (Infantryman with parachutist qualification).

3.  On 26 September 2003, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, due to a physical condition, not a disability.  

4.  The applicant's discharge packet and medical records are not available for review.   However, his DD Form 214 shows that he was administratively discharged on 26 September 2003, under the provisions of Army Regulation
600-200, paragraph 5-17, for a physical condition, not a disability.  His service was characterized as honorable.  He had completed 10 months and 26 days of creditable active duty and had no lost time.
5.  Accordingly, he was given a Separation Program Designator (SPD) Code of JFV and an RE Code of 3.  

6.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the basic authority for the administrative separation of enlisted personnel.  Paragraph 5-17 provides, in part, that commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to— (1) chronic airsickness; (2) chronic seasickness; (3) enuresis; (4) sleepwalking; (5) dyslexia; (6) severe nightmares; (7) claustrophobia; and 
(8) other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.   When a commander determines that a Soldier has a physical or mental condition that potentially interferes with
assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40–501.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

7.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation 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 separated from their last period of service with a waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

8.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JFV was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, paragraph 5-17, for a physical condition, not a disability.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 3 as the proper RE code to assign to Soldiers for this reason.



DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

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

3.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RMN __  __DLL __  ___ENA_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




__     Eric N. Andersen____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
 
DATE BOARDED
20071120
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
. . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
001.0200
2.

3.

4.

5.

6.