IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080012371 


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 an upgrade of his discharge, separation code, and reentry (RE) code.

2.  The applicant states that, prior to his enlistment, he was told by his recruiter not to disclose the fact that he was taking steroids which altered his thinking and made him depressed.  Consequently, when he arrived at Fort Benning, Georgia, he became nervous and being a young man, he did not want to get in trouble.  After disclosure, he was hospitalized and was subsequently discharged.  He feels that his Entry Level Status (ELS) discharge has been a burden on him since he received it.  He now would like to serve in the Army National Guard. 

3.  The applicant provided a copy of a consultation sheet, dated 28 September 1989, and a copy of a psychological evaluation report, dated 9 October 1987, from the Nassau County Medical Center, East Meadow, New York, in support of his application. 

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's records show he enlisted in the Regular Army for a period of 3 years and 14 weeks in the rank/grade of private (PV1)/E-1 and proceeded to his one station unit training (OSUT) at Fort Benning, on 24 April 1991.

3.  On 2 May 1991, the applicant underwent an initial counseling by his senior drill instructor, during which the applicant reported that prior to entry on active duty, he was in a mental hospital for depression and other problems. 

4.  On 9 May 1991, the applicant underwent a mental status evaluation at Community Mental Health Services, Fort Benning, at the request of his chain of command, due to a significant psychiatric history.  The applicant had reported that he was hospitalized one time for depression, and a second time for depression and suicide attempt.  The clinical social worker cleared him for continued training at the discretion of his chain of command; however, she remarked that although the applicant did not show signs of depression or suicidal ideation, if the command elected to retain him, it was with the understanding that his problems were likely to recur.  Therefore, the clinical social worker also cleared the applicant for administrative actions deemed appropriate and recommended his separation in accordance with applicable regulations.

5.  On 14 May 1991, the immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 11 of Army Regulation (AR) 635-200 (Personnel Separations) by reason of significant psychiatric history that existed prior to his entry on active duty.  

6.  On 14 May 1991, the applicant acknowledged receipt of the notification of separation action.  He was advised of the basis for his contemplated separation and its effects, the rights available to him, and the effects of a waiver of his rights He further acknowledged that Department of Veteran Affairs (DVA) and other benefits normally associated with completion of active service would be affected.  He elected not to consult with counsel, elected not to make a statement or submit a rebuttal in his behalf, and waived a separation medical examination.

7.  On 15 May 1991, by endorsement, the applicant’s immediate commander recommended the applicant be separated from the Army under the provisions of chapter 11 of AR 635-200 for a significant psychiatric history that existed prior to 
his entry on active duty.  The immediate commander further remarked that further counseling and/or rehabilitative efforts would not result in the quality of Soldiers desired by the Army. 

8.  On 15 May 1991, the separation authority reviewed the proposed separation action and approved an entry level separation (uncharacterized) in accordance with chapter 11 of AR 635-200.  The applicant was accordingly discharged on 24 May 1991.  The DD Form 214 he was issued at the time of his discharge confirms he was discharged under the provisions of paragraph 11-3a of
AR 635-200 and his characterization of service was Entry Level Status or Uncharacterized.  This form further confirms that he completed a total of 1 month and 2 days of creditable active military service.  Item 26 (Separation Code) and Item 27 (Reentry Code) of this form show the entries “JGA" and “RE-3” respectively. 

9.  The applicant submitted a copy of the Nassau County Medical Center psychological evaluation, dated 9 October 1987 and consultation sheet, dated 28 September 1987 as follows:

	a.  the psychological evaluation report shows that a staff psychologist diagnosed him with psychoactive substance abuse and personality disorder.  The psychologist remarked that the applicant’s intellectual functioning was average and that in ambiguous situations, the applicant lost control over his impulses.  The applicant was diagnosed at risk for decompensation due to excessive feelings of vulnerability, tendencies toward boundary fluidity, and fears of intrusions; and 

	b.  the applicant had a referral for steroid use for weightlifting and the use of anabolic steroids in large doses.

10.  AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status.  It states in pertinent part that when separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons:  Cannot or will not adapt socially or emotionally 
to military life, cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

11.  Chapter 3 of AR 635-200 describes the different types of characterization of service.  It states in pertinent part that an Uncharacterized Separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization Under Other Than Honorable Condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

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.  AR 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.  In the version in effect at the time, Paragraph 3-10 stated that individuals with prior service were eligible for enlistment if they qualified under the criteria listed in this paragraph.  Chapter 3 included a list of Armed Forces RE codes, including Regular Army RE codes.

	a.  RE–1 applied to persons who completed an initial term of active service who were fully qualified for enlistment when separated;

	b.  RE-3 applied to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification was waivable; and

	c.  RE–3C applied to persons who did not meet the reentry grade and service criteria of Army Regulation 601-210; ineligible for enlistment unless a waiver was granted. 

13.  AR 635-5-1 states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and 
analysis of separation data.  In the version of this regulation in effect at the time, SPD code JGA was used for Regular Army Soldiers separated under chapter 11, entry level status. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant demonstrated character and behavior characteristics not compatible with satisfactory continued service.  Accordingly, his immediate commander ordered a mental status evaluation.  The military clinical social worker cleared the applicant for administrative actions deemed appropriate by his chain of command.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his military service at that time.

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other-than-honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  

3.  The entry-level separation is given regardless of the reason for separation. This uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

4.  The evidence of record confirms that the applicant’s RE and Separation codes were assigned based on the fact that he was separated under the provisions of chapter 11, AR 635-200, Entry Level Status.  The correct RE code associated with this type of discharge is RE-3 and the correct Separation code associated with this type of discharge is “JGA.”  Therefore, the applicant received the appropriate codes associated with his discharge.  

5.  There is no evidence in the available record and the applicant did not provide any evidence that shows his recruiter told him not to disclose his prior psychological evaluation.  Furthermore, there is no evidence in the available records and the applicant did not provide any evidence to substantiate an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.
6.  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.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement in this case.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080012371



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ABCMR Record of Proceedings (cont)                                         AR20080012371



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