IN THE CASE OF:	  

		BOARD DATE:	  	  15 January 2009

		DOCKET NUMBER:  AR20080016649 


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, in effect, change of the narrative reason for separation and his reentry (RE) code of RE-3 on his separation document.   

2.  The applicant states, in effect, that at the time of his discharge he was young and immature.  He accepted what was given to him as an honorable discharge to come home.  Since then he has tried to get a government job and tried to enlist again without any success.  He has also attached a letter of what happened to him while still on active duty.

3.  The applicant provides a self-authored letter, a copy of a psychiatric evaluation with progress notes, college transcript and a copy of his work resume 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 available record shows that he enlisted in the Regular Army on 24 July 1996.  He successfully completed the required training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest pay grade he attained was pay grade E-3.

3.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 4 August 1997, shows that the applicant was evaluated by the division mental health clinic. The applicant was diagnosed as having a significant personality disorder (anti-social P.D./traits).  This is a chronic, maladaptive pattern of thinking and behaving which significantly impaired the applicant's ability to function under the requirements of military service.  The psychologist recommended that the applicant be administratively separated under Army Regulation 635-200, chapter 5-13, for a personality disorder.  The applicant was psychiatrically cleared for any administrative or judicial action deemed appropriate by the command.   

4.  A Standard Form 88 (Report of Medical Examination), dated 5 September 1997, found the applicant physically qualified for chapter discharge.  

5.  On 18 September 1997, the applicant's unit commander notified the applicant of his intent to initiate action to separate him under the provisions of Army Regulation 635-200, paragraph 5-13, with an honorable discharge.  The reason for the proposed separation action was that the applicant had been evaluated by the community mental health clinic and was diagnosed as having a personality disorder not otherwise specified with passive/aggressive traits.  It was also determined that further rehabilitation would not be successful.  The applicant was advised of the rights available to him.

6.  On the same day, the applicant acknowledged notification of the proposed separation action from the United States Army under the provisions of Army Regulation 635-200, paragraph 5-13.  The applicant was advised by legal counsel of the basis for the contemplated separation action, to separate him for a personality disorder under the provision of Army Regulation 635-200, chapter
5-13, and its effects, the rights available to him, and the effects of any action taken by him in waiving his rights.  The applicant did not submit a statement in his own behalf and waived his rights to legal counsel. 

7.  On 13 October 1997, the appropriate authority approved the recommendation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13 by reason personality disorder and that he be furnished an Honorable Discharge Certificate.
8.  On 6 November 1997, the applicant was honorably discharged under the provisions of paragraph 5-13, Army Regulation 635-200.  The narrative reason for separation was personality disorder.  The DD Form 214 he was issued at the time confirms that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of JFX and an RE code of RE-3.  The applicant authenticated the DD Form 214 with his signature in Item 21 (Signature of Member Being Separated) on the date of his separation.  

9.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 (Physical Evaluation for Retention, Retirement, or Separation) 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 Soldiers ability to perform duty.  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 (The Department of the Army Security Program), or Army Regulation
635-40.

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 (Active and Reserve Components 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.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, a waiver of the disqualification is allowed.  

11.  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.  It states, in pertinent part, that the SPD code JFX is the appropriate code to assign to Soldiers separated under the provisions of paragraph 5-13, Army Regulation 635-200, by reason of personality disorder.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with a separation code of JFX.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the narrative reason for separation and his RE code should be changed because he was young and immature were carefully considered and found to be insufficient in merit.  The applicant’s file was thoroughly reviewed and the evidence of record confirms that the applicant’s discharge was based on his diagnosis of having a personality disorder by a competent psychologist.  There is no evidence and the applicant has not presented any evidence to warrant relief. 

2.  By regulation, RE-3 is the proper code to assign to members who are assigned a separation code of JFX, and who are separated based on personality disorder.  The evidence of record contains a properly constituted DD Form 214 that shows the applicant was discharged under the provisions of paragraph 5-13, Army Regulation 635-200, by reason of personality disorder, and he was assigned a separation code of JFX and an RE code of 3.  This separation document carries with it a presumption of Government regularity.  

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  This includes the narrative reason for separation, and the assignment of his separation code and reentry code.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.  As a result, the RE-3 code and the narrative reason for separation were and still are appropriate. 

4.  The applicant is advised that although there is no basis to warrant a change to his RE code, he still has an opportunity to enlist.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, a waiver of the disqualification is allowed.  Therefore, if he desires to enlist, he should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army, and are required to process waivers of RE codes.

5.  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 this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  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.



      __________X____________
               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)                                         AR20080016649



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ABCMR Record of Proceedings (cont)                                         AR20080016649



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