IN THE CASE OF:	  

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20090002268 


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 the reentry (RE) code currently reflected on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from RE-3 to RE-1 or that he be furnished a letter that would assist him in reenlisting in the Army.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude enlistment.

2.  The applicant states that he lied to get out of the Army and that his discharge papers are based on a lie and are incorrect.  He states that some of the information contained in his discharge papers is false as no drug usage ever occurred and he never inflicted any harm on himself.

3.  The applicant provides in support of his application, an undated, self-authored letter explaining why he lied to get out of the Army; how much he regrets the decisions that he made; how he listened to his "buddies" who were telling him what to say and do; how there was no drug usage involved when he was in the Army; how he was having family problems; how he has been trying to reenter the Army; and how he wants a second opportunity to serve in the Army. 

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 6 November 2003, the applicant enlisted in the Regular Army (RA) in Mountain View, California, for 4 years, in the pay grade of E-4.

3.  A Report of Mental Status Evaluation, dated 5 January 2004, that was completed on the applicant shows he was evaluated as having a depressed mood or affect and this thought content included hallucinations.  The evaluation reads that he was evaluated pursuant to Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) , paragraph 5-17 (other designated physical or mental conditions) for a disorder manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that his ability to effectively perform his military duties was significantly impaired.  It further advised the applicant's command that the applicant's mental status would potentially interfere with his assignment or performance of duty, including military training; that there was no indication that his disorder had been aggravated by his relatively short period of active duty; and that his condition was not amenable to rehabilitation while he was in initial entry training.  The command was further advised to expect depression, poor judgment, minimal potential for solderization, recurrent thoughts of self harm, behavior inconsistent with Army values, and recurrent self-harm.  The applicant was recommended for removal from training and training weapons were specifically not recommended for his use.  The recommendation was that the applicant be expeditiously separated from the Army under the provisions of Army Regulation 635-200, paragraph 5-17.

4.  On 20 January 2007, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 5-17.  The commander cited the information contained in his Mental Status Evaluation as the basis for his recommendation.  The applicant acknowledged receipt of the notification and waive his right to consult with counsel and to submit a statement in his own behalf.

5.  The appropriate separation authority approved the recommendation for discharge on 22 January 2004.  Accordingly, on 27 January 2004, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph
5-17, due to a physical condition, not a disability.  He had completed 2 months and 22 days of net active service.  His service was uncharacterized based his separation while on entry-level status.  He was assigned a separation code of "JFV" and RE code "3."

6.  Army Regulation 635-200, paragraph 5-17, specifies that commanders may approve separation under this chapter on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 5-11 or 5-12 that potentially interfere with assignment to or performance of duty.  The commander will refer the Soldier for a medical examination and/or mental status evaluation.  

7.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in pertinent part, provides 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 and processing into the Regular Army 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 Regular Army RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  The person is ineligible for enlistment unless a waiver is granted after a 2-year period has elapsed since discharge.

8.  Army Regulation 601-210, chapter 3-10, also provides that RE Codes may be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE Codes would be processed for a waiver at their request, if otherwise qualified, and a waiver is authorized.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), prescribes the specific authorities (regulatory, statutory, or other directives), and reasons for the separation of members from active military service, and the SPD to be used for these stated reasons.  The regulation shows that the SPD for "JFV," as shown on the applicant’s DD Form 214, is appropriate for involuntary discharge when the narrative reason for discharge is "Condition, Not a Disability" and that the authority for discharge under this SPD is Army Regulation 635-200, paragraph 5-17.

10.  The SPD/RE Code Cross Reference Table, in effect at the time, provides instructions for determining the RE code for Regular Army (RA) Soldiers and Reserve Component (RC) Soldiers separated for cause.  It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply.  The SPD code of "JFV" has a corresponding RE Code of "3."

11.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that for an RA Soldier on entry-level status (first 180 days of continuous active duty) the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the RE code currently reflected on his DD Form 214 be changed from RE-3 to RE-1 or that he be furnished a letter that would assist him in reenlisting in the Army.

2.  His contentions have been noted.  However, his has provided no evidence to show that the RE code that was assigned to him is in error or unjust.  The RE-3 is consistent with the basis for his separation, and in this case, there is no basis to correct the existing code.  The applicant has failed to show, through the evidence submitted with his application or the evidence of record, that his separation which resulted in his RE-3 was and is unjust.  If he wishes to again enlist in the Army, an RE Code of "3" is waivable; therefore, he should seek the guidance of armed forces recruiters/career counselors in seeking such a waiver, if he is otherwise qualified.

3.  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.  

4.  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)                                         AR20090002268



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ABCMR Record of Proceedings (cont)                                         AR20090002268



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