IN THE CASE OF:	  

		BOARD DATE:	        7 August 2008

		DOCKET NUMBER:  AR20080008204 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that items 26 (Separation Code) and 27 (Reentry (RE) Code) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.  He also requests that three erroneous counseling statements and all military and medical documentation indicating that he attempted suicide be removed from his military records. 

2.  The applicant states, in effect, that his separation code and RE code are false and that they hinder his ability to obtain suitable employment.  He contends that he did not attempt to commit suicide on 19 December 2003 in order to avoid deployment and/or be discharged from the military.  He contends that he was given three different counseling entries in order for his command to substantiate his discharge.  He indicates that he was on emergency leave from Iraq due to his father’s terminal illness, that his family responsibilities and his conscience were weighing on him heavily as he prepared to return to his unit in Iraq, and the stress of the situation was aggravating his usual bouts of migraine headaches.  On 19 December 2003, he was suffering from a severe migraine.  He took ten ibuprofen pills in an effort to relieve some of the pain, and he fell asleep.  His wife found him and became alarmed upon having difficulty waking him and called 911.  As a result of his hospital stay, he was diagnosed with an adjustment disorder and was recommended for discharge.  He claims that after his discharge from the hospital he received three counseling statements (on 17 December 2003, 24 December 2003, and 30 January 2004) which were done in an effort to discharge him with the least favorable discharge, RE code, and separation code.   
3.  The applicant states that his unit was very upset at his hospitalization and expressed their displeasure to him and his doctors.  His unit indicated on several occasions that they were going to punish him by court-martial for his alleged unauthorized absence and missing movement.  He states that he was told by his unit that he should not have gone to the hospital and he was told that his unit considered him in an unauthorized leave status and missing movement since he had not made his return flight to Iraq.  He states that he was involuntarily admitted to a military medical facility by a medical officer and therefore was not in an unauthorized leave status nor did he miss movement.  He further states that he should not have received the three counseling entries contained in this packet as there was no factual basis for these entries, and the requirements of paragraph 5-17 of Army Regulation 635-200 were not met prior to his involuntary separation from the Army.  He also requests a personal appearance unless the Board chooses to grant his requests in full. 

4.  The applicant provides a statement, dated 19 April 2008, from his attorney and 20 enclosures outlined on this statement.

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.  The applicant enlisted in the Regular Army on 2 January 2003 and trained as an infantryman.  He served in Iraq from 18 August 2003 to 3 December 2003.  

3.  DA Form 4856 (Developmental Counseling Form), dated 17 December 2003, shows the applicant was counseled for failure to sign in off of emergency leave on 16 December 2003, called late to give a status on his whereabouts, and reason was missed flight due to a prior connection from LAX [Los Angeles International Airport].  

4.  On 23 December 2003, the applicant underwent a mental health evaluation and was diagnosed with an adjustment disorder with mixed disturbance of emotions and conduct.

5.  DA Form 4856, dated 24 December 2003, shows the applicant was counseled for attempted suicide, missing movement, and was recommended for a chapter 5-17 separation.  

6.  A DD Form 2807-1 (Report of Medical History), dated 14 January 2004, shows the applicant reported that he attempted suicide on 19 December 2003.

7.  On 20 January 2004, the applicant underwent a mental status evaluation and was diagnosed with an adjustment disorder with depressed mood. 

8.  DA Form 4856, dated 30 January 2004, shows the applicant was counseled for intent to chapter.  

9.  On 4 February 2004, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions.  He cited that the applicant’s condition was a deeply ingrained maladaptive pattern of behavior, of long duration, that interfered with his ability to perform his duties.  On 2 March 2004, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, for a physical condition, not a disability.  

10.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, PARA [paragraph] 5-17.”  Item 26 on his DD Form 214 shows the entry, "LFV."  Item 27 on his DD Form 214 shows the entry, "3."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "PHYSICAL CONDITION, NOT A DISABILITY.”

11.  A review of the applicant’s Official Military Personnel File (OMPF) on the Interactive Personnel Electronic Records Management System revealed the three counseling statements in question in the case files for approved separations section.

12.  The applicant provided medical documentation pertaining to his hospitalization for an apparent suicide attempt by overdose during the period 
20 December 2003 to 23 December 2003.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-17 sets the policy and prescribes procedures for separating members on the basis of other physical or mental conditions not amounting to a disability that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to, chronic airsickness or seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and 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.

14.  Army Regulation 635-200, paragraph 5-13 provides that a Soldier may be separated for a 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 with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the Department of Defense components.  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; Army Regulation 604-10 or Army Regulation 635-40.

15.  Paragraph 5-3 (Secretarial plenary authority) of Army Regulation 635-200 states that separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums.

16.  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 “LFV” is “Physical condition, not a disability” and the regulatory authority is Army Regulation 635-200, paragraph 5-17.  The regulation states the reason for discharge based on separation code “LFF” is “Secretarial Authority” and the regulatory authority is Army Regulation 635-200, paragraph 5-3.  

17.  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.

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

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

20.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210. 

21.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 31 March 2003, shows that when the SPD [Separation Program Designator] is "LFV" then an RE code of 3 will be given.  When the SPD is “LFF” then the RE code will be determined by the appropriate authority.
  
22.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that case files for approved separations (include administrative discharge actions and all allied documents) will be filed in the service section of the OMPF.  

23.  Army Regulation 15-185 governs operations of the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR board members may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant’s discharge proceedings were improperly processed.  Although the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 5-17 (for a physical condition, not a disability), the unit commander cited that the applicant’s condition was a deeply ingrained maladaptive pattern of behavior (i.e., a personality disorder).  However, since the applicant was not diagnosed with a personality disorder by a psychiatrist, it appears he did not meet the criteria for a separation under the provision of Army Regulation 635-200, chapter 5-13.  Although the evidence shows there was a basis to separate the applicant, chapter 5-13 was not the proper authority for his separation.  Therefore, it would be appropriate to correct items 25, 26, and 28 on his DD Form 214 to show he was discharged under the provisions of Army Regulation 635-200, paragraph 5-3, for Secretarial Authority.   

2.  Evidence of record shows the applicant had medical problems prior to his discharge, whether those problems were “attempted suicide” and/or migraines.  It would not be appropriate to arbitrarily determine, at this point in time and with no further evaluation, that the applicant is fully qualified for enlistment.  Therefore, it would not be equitable to change his RE code to RE-1.  The RE-3 code allows him to request a waiver if he desires to enlist, and recruiting officials are required to process a request for a waiver.  

3.  There is no evidence that the three counseling statements in question were improperly given.  These counseling statements were properly filed in the applicant’s OMPF in accordance with the governing regulation.  Therefore, there is no basis for granting the applicant’s request to remove these statements from his military records.  

4.  The applicant’s request that all military and medical documentation indicating that he attempted suicide be removed from his military records was noted.  However, the Army has an interest in promoting the reliability of its medical records.  Alteration or removal of records after the fact may lead to fundamental questions about the veracity of the records in this case and in general.  For these reasons, the Board declines to alter or remove records in the applicant’s medical records.  The Secretary’s interest is in ensuring an orderly system in which a physician makes certain observations and records them faithfully in the medical records at the time.  It would take an extraordinary showing to alter such a diagnosis or medical observation or remove records.  In this case, the applicant’s physician made a good faith observation that the applicant attempted suicide.  That observation was duly recorded in the applicant’s medical records and he has not presented sufficient reason to alter that observation.  In addition, the applicant himself indicated on the DD Form 2807-1 that he attempted suicide.  

5.  Although the applicant requested a personal appearance before the Board, the governing regulation states that an applicant does not have a right to a hearing before the Board.  It does not appear that his case is so complicated that a formal hearing is required to make a fair and equitable decision in his case. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___xx___  ___xx___  __xx___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entries in items 25, 26, and 28 on his DD Form 214;

	b.  adding the entry, “AR 635-200 PARA 5-3” in item  25 on his DD Form 214;

	c.  adding the entry, “LFF” in item 26 on his DD Form 214; and 

	d.  adding the entry, “Secretarial Authority” in item 28 on his DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amendment of his RE code, removal of the three counseling statements in question, and removal of any military and medical documentation indicating that he attempted suicide from his military records. 




      _______ _xxxxx_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080008204





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ABCMR Record of Proceedings (cont)                                         AR20080008204



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