IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090011128 


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 her reentry eligibility (RE) code.

2.  The applicant states, in effect, she would like the opportunity to show she is capable of fulfilling her duties as a Soldier.  She claims she was discharged due to a mental disorder and received an RE-3 code; however, the mental disorder was a lie she created in order to return home to her children.  She claims to have been upset because she was receiving information that her children, ages 9 and 14, were not being properly cared for at home.  After being denied leave three times and discussing the situation with her battle buddies, who suggested she "play crazy" to get released from the Army, she did so.  She states her husband and she divorced and she gave him full custody of their children.  Her children are now very well cared for and are no longer a distraction to her in pursuing a career in the Army.  She now requests to be forgiven, to be granted a change to her RE code, and be allowed to reenter military service.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of her application.


CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows she enlisted in the Army National Guard of the United States on 24 May 2006 and entered active duty to attend initial active duty training on 11 July 2006.

2.  On 17 October 2006, while attending advanced individual training at Fort Lee, Virginia, the applicant accepted nonjudicial punishment under the provisions of Article of the Uniform Code of Military Justice (UCMJ) for being absent without leave from 16 through 17 October 2006.

3.  The applicant's record contains six formal counseling statements issued between 31 October 2006 and 14 December 2006.  These statements show the applicant was counseled on six separate occasions for a myriad of infractions that included failure to obey a lawful order, brigade policy concerning tobacco use, alcohol consumption, cellular phone use, bed check, reception integration, and the commander's initiation of her separation action.

4.  A Medical Command Form 4038 (Report of Behavioral Health Evaluation), dated 11 December 2006, shows that the applicant underwent a mental status evaluation.  The examining psychiatrist determined the applicant was mentally responsible, met retention requirements, and had the mental capacity to understand and participate in separation proceedings.  However, he did diagnose the applicant with schizophrenia and indicated the applicant would not be responsive to command efforts at rehabilitation and indicated it was in the best interest of the Army and applicant to proceed expeditiously with her administrative separation under the provisions of paragraph 5-17, Army Regulation 635-200.

5.  On 30 January 2007, the unit commander notified the applicant that he was initiating action to discharge her due to her diagnosed schizophrenia.  He also recommended she receive an honorable discharge.

6.  On 30 January 2007, the applicant acknowledged receipt of the separation notification and completed an election of rights in which she acknowledged she had been afforded the opportunity to consult with counsel and was advised of the basis for the contemplated action to separate her for a designated mental condition, its effects, the rights available to her, and the effect of any action taken by her to waive her rights.  She declined representation by counsel and elected not to submit a statement in her own behalf.

7.  On 28 February 2007, the separation authority approved the applicant's separation under the provisions of paragraph 5-17, Army Regulation 635-200, and directed that the applicant receive an honorable discharge.  On 5 March 2007, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant upon her separation confirms she was separated in the rank of private first class/E-3 after completing a total of 6 months and 1 day of active military service.  Item 25 (Separation Authority) shows the authority for her separation as paragraph 5-17, Army Regulation 
635-200.  Item 26 (Separation Code) lists the separation program designator (SPD) code JFV.  Item 27 (Reentry Code) lists RE code 3.  Item 28 (Narrative Reason for Separation) lists the reason for her separation as "condition, not a disability."

9.  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 and the U.S. 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.  RE-4 applies to members permanently disqualified from further service.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

10.  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 SPD code JFV is the appropriate code to assign to Soldiers separated under the provisions of paragraph 5-17, Army Regulation 635-200, by reason of condition, not a disability.  The SPD/RE Code Cross Reference Table included in the regulation establishes RE-3 as the proper code to assign to members separated for this reason with SPD code JFV.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the Army's enlisted personnel separation policy.  Paragraph 5-17 provides for separating members for physical or mental conditions not amounting to disability, which includes those members suffering from a disorder manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade her RE code in order to reenter active duty was carefully considered.  However, there is insufficient evidence to support granting the requested relief.

2.  By regulation, the proper SPD and RE codes to assign to members separated by reason of physical/mental condition, not a disability, under the provisions of paragraph 5-17, Army Regulation 635-200, are JFV and RE-3.  Therefore, the SPD and RE codes assigned the applicant in connection with her separation from active duty were appropriate and remain valid.

3.  The applicant is advised that although no change is being recommended to her RE code, this does not mean that she is permanently disqualified from enlistment.  RE-3 is applicable to members who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  Therefore, if she desires to reenter the service, she should contact a local recruiter who is best qualified to determine her eligibility based on the needs of the Army and who can process an RE code waiver.

4.  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)                                         AR20090011128



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ABCMR Record of Proceedings (cont)                                         AR20090011128



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