IN THE CASE OF:	  

		BOARD DATE:	        31 MARCH 2009

		DOCKET NUMBER:  AR20090001250 


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, correction of appropriate military records to show a reentry (RE) code which would allow him to reenter the U.S. Army as a chaplain's assistant.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reentering military service.  He also requests an age and a medical waiver for enlistment.

2.  The applicant states that he has a desire to serve his country as a chaplain's assistant and that his life is totally different than what it was when he was 19 years old.  He states that he will go wherever the Army desires if he is allowed to enlist.

3.  The applicant provides in support of his application, an undated statement in which he requests an RE code waiver, age waiver, and a medical waiver to enlist in the U.S. Army; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a letter from his psychiatrist, dated 5 November 2008; and an information sheet used to fax his application and supporting documents to this Board.

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 27 April 1982, the applicant enlisted in the Regular Army (RA) at age 19, in Jackson, Mississippi, in the pay grade of E-3.

3.  The applicant was counseled twice on 30 May 1982 for stating that he wanted out of the Army.  According to the General Counseling Form, the applicant had been admitted to the hospital on three occasions from the time of his enlistment to 3 May 1982 and he stated that when he was in college he twice had homosexual relations with a student.  It is noted in the General Counseling Form that the applicant appeared slow in reaction to orders; missed a large amount of training; had self-pity and no desire to train; had no qualities of a Soldier; and would only be a problem if he remained in the Army as he only joined the Army to get away from home.

4.  The applicant was counseled twice on 4 June 1982 regarding his poor attitude; lack of desire to become a productive Soldier; lack of self-discipline;  inability to perform his duty; and inability to adapt to military life.  During his counseling, the applicant stated that he was fed up with the Army and that he believed he was not physically fit for the Army and the Army could not make him a productive Soldier.

5.  On 7 June 1982, the applicant's commander submitted a request to the Chief, Department of Psychiatry and Neurology, United States Reynolds Army Hospital, for him to undergo a mental status evaluation.  In the request, the commander stated that the applicant had been telling other Soldiers in the platoon that he was a homosexual.  The commander stated that the applicant was a good follower and that he had not been a problem as far as getting him to work.  He also stated that the applicant got along with other Soldiers; however, he was stating that he was a homosexual.

6.  On 8 June 1982, the applicant was counseled regarding discharge under the Trainee Discharge Program.  According to the commander, the applicant admitted that he could not adjust to military standards.  The commander stated that the applicant's lack of desire and personal problems reflected a very 

unstable character and that he would need mental rehabilitation as he returned to civilian life.  The commander cited the applicant's hospitalization for a lung virus; his physical profile for "tendencies"; his inability to Soldier and to do physical training; and his admission of a homosexual relationship as a college student at a basis for the counseling.

7.  On 9 June 1982, the applicant underwent a mental status evaluation and the attending behavioral science specialist stated that his mental status at that time was alert, cooperative, and coherent and spontaneous in both speech and thought; however, he displayed instances of stress and admitted difficulty in dealing with fellow Soldiers.  The behavior science specialist determined that the applicant's attitude adversely affected his ability to conform to the requirements of training and that his prognosis for effective military service was seen as extremely poor.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.

8.  The applicant was counseled on 15 June 1982 for his lack of discipline; lack of positive attitude; homosexual tendencies; and poor physical and mental being. He was told that he was being recommended for discharge from the Army under the Trainee Discharge Program.  The applicant's commander noted that the applicant stated that he no longer wanted to be in the U.S. Army.

9.  On 21 June 1982, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5-33, under the Trainee Discharge Program.  The commander cited the applicant's statement of being a homosexual, lack of motivation, and lack of a positive attitude as the basis for his recommendation for discharge.  The applicant acknowledged receipt of the notification on the same day.

10.  The appropriate separation authority approved the recommendation for discharge on 23 June 1982 and directed the issuance of an Honorable Discharge Certificate.  Accordingly, on 29 June 1982, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 5.33f(2), under the Trainee Discharge Program, due to marginal and non-productive performance.  The applicant’s DD Form 214 shows that he was assigned an RE code of 3.

11.  The applicant submitted a letter from his psychiatrist, dated 5 November 2008, which shows that he is currently under the care of his psychiatrist for Bipolar Mood Disorder.  In the letter the psychiatrist states that he knows of no reason why the applicant cannot serve honorably.

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.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  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.

13.  An RE-3 code was entered when a Soldier's record indicated that he or she was ineligible for or otherwise been denied immediate reenlistment; had signed a Declination of Continued Service Statement (DCSS); had met his or her retention control point (established in Army Regulation 601-280); in confinement; or had an Immediate Reenlistment Prohibition Code.  Waivers for an RE code of 3 may be obtained by applying at the nearest recruiting office.  Such waivers are dependent on the needs of the service at the time of application.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show an RE code which would allow him to reenter the U.S. Army.

2.  His contentions have been considered; however, there appears to be no basis for removal or waiver of those disqualifications which established the basis for the RE code that he was assigned.

3.  The fact that the applicant was 19 years old at the time of his enlistment has been noted.  However, his records show that he was counseled several times for his lack of discipline; lack of positive attitude; homosexual tendencies; and poor physical and mental being.  According to a counseling statement, the applicant had no desire to remain in the service and he made it clear to his chain of command.  He was assigned an RE code in accordance with the applicable regulation and the fact that he now has a desire to enlist in the Army is an insufficient justification for changing the RE code that he was properly assigned.

4.  Action taken in this case to deny both a change in the applicant's RE code and a waiver of the disqualifications does not mean that he has been completely denied the opportunity to enlist.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver(s) under the provisions of chapter 4, Army Regulation 601-210.  Therefore, since enlistment criteria does change, and since he has the right to apply for a waiver, it is suggested that he periodically visit his local recruiting station to determine if he should apply for a waiver.
5.  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 has failed to submit evidence that would satisfy this requirement.

6.  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

___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.



      ________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)                                         AR20090001250



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ABCMR Record of Proceedings (cont)                                         AR20090001250



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