IN THE CASE OF:	  

		BOARD DATE:	    19 August 2010

		DOCKET NUMBER:  AR20090021605 


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 Separation Program Designator (SPD) and Reenlistment Eligibility (RE) codes on his 23 December 2003 DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed. 

2.  The applicant states he is in perfect health and wishes to reenter the Army.  He adds he needs his RE code changed to a "1" for this purpose.

3.  The applicant does not provide any additional documentation 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 record shows he enlisted in the Regular Army on 30 May 2002 for 3 years.  He served in Iraq from 23 January to 25 May 2003 in support of Operation Enduring Freedom.

3.  On 30 July 2003, the applicant underwent a psychiatric examination in which he was diagnosed with an adjustment disorder.  The staff psychiatrist recommended the applicant be administratively separated under the provision of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 5, paragraph 5-17.  The staff psychiatrist listed the following findings:

   a.  The applicant met retention standards prescribed in Chapter 3, Army Regulation 40-501 and there was no psychiatric disease/defect that warranted disposition through medical channels.

	b.  The applicant was mentally sound and able to understand wrongful conduct and he was able to conform to the requirements of the law.  He had the mental capacity to understand and participate in board or other administrative proceedings.

	c.  The applicant's condition and the problems he presented "were not amenable to further treatment, manifesting disturbances of perceptions, thinking, emotional control or behavior sufficiently severe that the applicant's ability to effectively perform military duties was significantly impaired."  The recommendation was separation.

4.  A memorandum from the applicant's commander, dated 7 October 2003, shows the applicant suffered a broken leg in Iraq on 4 October 2003.  He was placed in a medical hold company in Kuwait and then returned to Fort Stewart.  The applicant received a complete psychiatric evaluation on 30 July 2003 in which it was recommended that he be discharged under the provisions of chapter 5, paragraph 5-17.  The unit initiated the chapter action, but the action was placed on hold when the applicant went absent without leave (AWOL) on 
12 September 2003.  

5.  On 18 November 2003, nonjudicial punishment was imposed against the applicant for being AWOL from 12 September to 23 October 2003.

6.  On 3 December 2003, the commander recommended that the applicant be separated under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, other designated physical or mental conditions.

7.  On 3 December 2003, the applicant was advised by counsel of the basis for the contemplated action to separate him.  He elected not to submit any statements on his own behalf and requested to consult with counsel.

8.  On an unspecified date, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, with a General Discharge Certificate.

9.  On 23 December 2003, the applicant was separated under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, by reason of a physical condition, not a disability.  The DD Form 214 shows he had completed a total of 1 year, 5 months, and 12 days of active military service and he had 41 days of lost time.  Item 26 shows he was assigned an SPD code of "JFV" and item        27 shows his RE code as "3."  

10.  Army Regulation 635-200 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.

11.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  This regulation shows that the SPD code JFV as shown on the applicant's DD Form 214 specified the narrative reason for separation as involuntary release or transfer for "physical condition, not a disability" and that the authority for separation under this SPD was "Army Regulation 635-200, paragraph 5-17."  Additionally, the SPD/RE Code Cross Reference Table establishes RE code 3 as the proper reentry code to assign to Soldiers separated for this reason.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

12.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his SPD and RE codes should be changed so that he may be eligible to reenter the military was carefully considered.  However, there is insufficient evidence to support his contentions.
2.  By regulation members separated by reason of a physical condition, not a disability, under the provisions of paragraph 5-17, Army Regulation 635-200, are assigned an SPD code of JFV and an RE code of 3.  Therefore, the SPD and RE codes assigned to the applicant are in conjunction with his narrative reason for separation and they are appropriate and remain valid.

3.  The applicant is advised that although no change to his SPD and RE codes is recommended, this does not mean he is being denied reentry into the military.  While an RE-3 does apply to persons who are not considered fully qualified for reentry or continuous service there are provisions for a waiver of the disqualification.  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 at the time and are required to process RE code waivers.

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)                                         AR20090021605



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ABCMR Record of Proceedings (cont)                                         AR20090021605



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