IN THE CASE OF:	  

		BOARD DATE:	       10 September 2009

		DOCKET NUMBER:  AR20090008153 


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, an upgrade of his reentry (RE) code.

2.  The applicant states, in effect, that he told the psychologist he was feeling suicidal and had a history of depression because he thought it was the only way to get out of basic training.  The applicant further states he exaggerated his history of depression because it was his impression that after several failed attempts to get out of basic training, this was the last and only opportunity.

3.  The applicant indicates that he desires to personally appear before the Board.

4.  The applicant provides his DD Form 214 (Certificate of Release or Discharge and Active Duty), a self-authored letter, two letters to Members of Congress, a resume, a certificate of marriage, several letters of reference/recommendation, and certificates of completion/recognition.

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 military record shows he enlisted in the Regular Army and entered active duty on 2 July 2003.  The applicant did not complete basic training and was never awarded a military occupational specialty.

3.  The applicant's record contains a report of behavioral health evaluation, dated 5 August 2003, which shows a health service psychologist determined that the applicant had an adjustment disorder with depressed mood.  In conducting the mental status examination, the psychologist found the applicant's behavior as normal, fully alert and oriented, his speech was soft, his mood was depressed, his thinking process was clear, his thought content was abnormal with some suicidal ideation, his judgment was poor, and his impulse control was poor. 

4.  The record further shows that as a result of the behavioral health evaluation, the health service psychologist considered the applicant as potentially dangerous and recommended the following treatments and precautions:

	a.  a follow-up appointment on 6 August 2003
	b.  increased supervision
	c.  no access to weapons or ammunition until cleared by mental health
	d.  removal of weapons, medications and other potentially lethal items from 	the applicant's living quarters.
	e.  avoidance of stress

5.  In remarks included on the evaluation, the health service psychologist stated that the "SM has history of past depressive episodes with suicidal gestures.  He currently is reporting similar symptoms and has contemplated harming himself and others.  He is at risk to harm self or others if he remains in training.  Recommend an expeditious Ch [Chapter] 5-17 separation."  The evaluation further shows that in the professional opinion of the psychologist, the applicant would not respond to command efforts at rehabilitation or any treatment methods available in the military behavioral healthcare system.

6.  On 12 August 2003, the applicant was counseled in regard to the results of his mental health evaluation and was informed competent medical authorities have diagnosed him with an adjustment disorder with depressed mood.  He was further informed that as a result of the recommendation made by competent medical authority that his chain of command was initiating separation action against him.  The record shows that the applicant acknowledged by his initials on a counseling form that he agreed with the counseling provided without additional comment.

7.  During the processing of his separation, the applicant acknowledged that he understood the basis for the action to separate him for entry level status performance and conduct and the effects of such a separation.  He further acknowledged that he understood that if separated he would be ineligible to apply for enlistment in the Army for a period of 2 years after discharge. 

8.  On 19 August 2003, the applicant was released from active duty.  The DD Form 214 he was issued at the time of his separation shows that he was discharged for a physical condition, not a disability and that his character of service was uncharacterized.  The separation code applied was "JFV" and the reentry code applied was "3."

9.  The applicant provided a letter from the Chief of Psychiatry, LBJ Tropical Medical Center, dated 18 July 2008, which essentially stated that the applicant's medical records from his birth to the year 2005 do not contain any reference to consultations or treatments for any psychiatric disorders to include depressive disorders.

10.  The applicant also provided a letter of recommendation, written by the same Army officer who initially recommended his separation from the Army, which essentially recommends the applicant be allowed to rejoin the Army.  The Army officer further states, that "while serving he [the applicant] was clearly one of the top performers in the battery of over 200 Soldiers".  The officer concludes with the statement, "I am fully convinced that [the applicant] will make an outstanding officer."

11.  Army Regulation 635-200 (Personnel Separations), paragraph 5-17 (b) states that when a commander determines a soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the soldier for a medical examination and/or mental status evaluation.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes identifies the specific authorities, reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214 at the time of separation.  It shows, in pertinent part, that SPD code "JFV" should be used when the narrative reason of an enlisted Soldiers separation is "physical condition, not a disability".

13.  Separation Program Designator Code (SPD)/Reentry (RE) Code Cross Reference Table, dated 31 March 2003, provides instruction for determining the RE code for active Army soldiers.  It shows, in pertinent part, that RE code "3" is appropriate for soldiers separated with an SPD code of "JFV."

14.  Army Regulation 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 United States Army Reserve (USAR).  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE codes, including RA RE codes.  RE-4 applies to persons who have a nonwaivable disqualification and RE-3 applies to persons who have a waivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the RE code of RE-3 he was assigned upon his release from active duty should be changed to RE-1 was carefully considered.  However, by regulation, an RE-3 is the proper reentry code to assign members separated for a physical condition which is not a disability.

2.  An RE-3 is a waivable code, therefore the applicant may request a waiver of the disqualifying factor upon request for reenlistment in military service.

3.  It is noted that the applicant contends his motivation to fabricate his mental condition prior to his separation from the Army was because he thought it to be his only way out of basic training.  However, given the extreme and serious nature of the applicant's admitted fabrication at the time, it is clear that the chain of command acted appropriately in processing the applicant for separation and establishing an RE code of "3."

4.  The letter provided by the applicant from the Chief of Psychiatry, LBJ Tropical Medical Center was reviewed.  However, it is not sufficiently mitigating to warrant a change to an appropriately awarded RE code.

5.  It is further noted that the Army officer who initiated the applicant's separation from the Army now recommends that he be allowed to rejoin the Army.  However, this officer's retrospective opinion does not provide a sufficient basis to warrant a change of an appropriately established RE code at the time of separation.  However, this does not preclude the applicant from utilizing the recommendation when petitioning Army recruiting officials to support his request for a waiver to reenlist in the Army. 

6.  Although the applicant requested to appear before the Board personally, there is sufficient evidence available in the record to make a fair and impartial decision in this case.

7.  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)                                         AR20090008153



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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