RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070010490 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Qawiy A. Sabree

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 reenlistment eligibility code be changed from RE-3 to RE-1.

2.  The applicant states, in pertinent part, that he was wrongfully discharged from the State of Florida Army National Guard (ARNG) and upon his discharge he was given an unfavorable reenlistment eligibility code that prevents him from enlisting in the Armed Forces. 

3.  The applicant provides a self-authored personal statement, a copy of his discharge document and a correction to the discharge document with separation orders, one general counseling form, a certificate of training, a letter from the State of Florida Fifth Judicial Circuit Court, a letter from the Department of Veterans Affairs (VA), and a letter from the Office of the Adjutant General of the State of Florida Army and Air Force National Guard and a copy of his DD Form 214 dated 13 December 1994.

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 24 January 1994, the applicant enlisted in the ARNG of the State of Florida.  The applicant initialed on his enlistment contract that it was his initial enlistment as a non-prior service member and that he elected to be member of an active troop program unit for 6-years, then transfer to the Individual Ready Reserve for the final 2-years of his 8-year statutory military service obligation.

3.  On 18 August 1994, he reported to Fort Jackson, South Carolina for initial basic training with follow on assignment instructions to report to advanced individual training on 21 October 1994 to Fort Lee, Virginia.  

4.  On 13 December 1994, that applicant was released from active duty training after successfully completing the military occupational specialty (MOS) 92Y (Unit Supply Specialist) at Fort Lee, Virginia.  

5.  On 10 February 1995, the Marion County Sheriff's Department (State of Florida) responded to the applicant's mother's home and found the applicant threatening his mother with a firearm.  The applicant was restrained and taken to the Marion County Citrus Mental Health Facility.  In the investigator's written report, he states in effect, that the applicant's mother had become fearful for her life and that the applicant had returned from boot camp questioning the authenticity of his family members to include stating that the Central Intelligence Agency and the Federal Bureau of Investigation had replaced his family members with imposters. 

6.  On 23 May 1995, the applicant's chain of command was notified by a sergeant major (SGM) from the Florida ARNG headquarters that he, the applicant, had mailed a personal letter to the President of the United States stating he was being investigated by the Central Intelligence Agency and that he would like the President to stop the investigation.  

7.  On 24 May 1995, the applicant was sent by certified mail a memorandum which directed him to report to Building 964 (Medical/Dental Clinic) at the Jacksonville, Florida, Naval Air Station for a command directed physical and psychiatric medical evaluation.  The memorandum shows the appointment was scheduled for 5 June 1995 and the applicant was directed to report no later than 0645 hours.

8.  On 26 May 1995, the applicant authenticated in his own hand PS Form 3811 (USPS Domestic Return Receipt Form) that he had received the 24 May 1995 memorandum, which ordered him to an appointment for a command referred physical and psychological medical evaluation. 

9.  On 1 June 1995, the unit commander formally counseled the applicant.  The applicant signed a statement in his own hand, which states, in pertinent part, that he acknowledged the verbal counseling session and the commander's verbal directive to report for the physical and psychological examination on 5 June 1995.  The applicant stated he refused to comply with the written and verbal instructions to undergo a physical examination as he felt it was not necessary.  He also acknowledged that he could be processed for separation and receive a general discharge characterization of service for refusing to complete the command directed physical examination.  A commissioned and two noncommissioned officers of the Florida ARNG witnessed this statement. 
10.  On 26 February 1996, the applicant was honorably discharged from the ARNG and as a member of the reserve of the Army per Orders PO33-023, dated 2 February 1996, published by the State of Florida Army and Air Force National Guard Headquarters.  The authority for the discharge was identified as paragraph 8-27j, NGR (National Guard Regulation) 600-200.  The applicant was issued NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) which shows in Item 26 (Reenlistment Eligibility Code) the entry RE-3 and that his characterization of service was honorable.

11.  The applicant provided the following documents in support of his application.

     a.  On 29 January 1996, a letter from the Fifth Judicial Circuit Court, State of Florida, to the Vice President of the Central Florida Community College (CFCC) which asks the college to consider allowing the applicant to enroll and attend classes to the CFCC.  The letter states, in effect, that the applicant is being treated for a delusional disorder with medication, that he is not dangerous and would act appropriately in class.  The author continues, "He needs something to occupy his mind, other than the delusion that he is being investigated by the C.I.A. and that his mother and her boyfriend have been replaced by imposters."  

     b.  A written statement dated 25 September 2006 from the VA Regional Office in St. Petersburg, Florida certified that the applicant was in receipt of monetary compensation at the rate of $2,393.00 a month.

12.  National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) in effect at the time, governs procedures for enlisted personnel of the ARNG.  Paragraph 8-27 covers reasons, applicability, codes, and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG.  Paragraph 8-26(j) pertains to failure to obtain a required physical in accordance with NGR 40-501 (Standards of Medical Fitness, ARNG).  A Soldier will be notified in writing of the requirement to obtain a physical and given 90 days in which to comply with the written directive.  If the Soldier does not comply with the written directive, they can be processed for separation and issued a Reenlistment Eligibility Code of 3 or RE-3.

13.  Pertinent Army regulations provide that prior to discharge or release from active duty or the ARNG, 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 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.

14.  RE-1 applies to persons completing their term of service (ETS) who are considered qualified to reenter the Army.

15.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was wrongfully discharged and that his reenlistment eligibility code prevents him from enlisting in the Armed Forces.  

2.  Records show the applicant was discharged from the ARNG and the Reserve of the Army on 26 February 1996 due to his lack of compliance with a superior commissioned officer's directive to submit to a physical and mental medical examination.  The applicant acknowledged receipt in his own hand on a USPS Domestic Return Receipt of a written notification that he was to report to the medical clinic at the Naval Air Station in Jacksonville, Florida for a command directed medical examination.  On 1 June 1995, the applicant personally signed a prepared statement, which states he would not comply with the requirement to be medically examined by military medical professionals.  In the written notification of the medial appointment, the applicant was advised that if he did not comply with the instructions he could be separated under the provisions of NGR 600-200, paragraph 8-27(j).  Accordingly, the applicant was properly separated and his RE code was established as RE-3 in compliance with stated regulatory guidance.

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.  In view of the above, there is insufficient evidence to change the applicant's discharge RE code.  Therefore, the applicant's RE code on his NGB Form 22 is correct.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QAS__  __CLG___  __JRS__  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.





___Curtis L. Greenway__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.