IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100007021 


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 a change to item 26 (Separation Code), item 27 (Reenlistment (RE) Code), and item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 December 1988.

2.  He states he wants to join the Army National Guard (ARNG) and serve his country once again.  Prior to separation he proudly served for 4 years, 10 months, and 24 days.  He received the Army Good Conduct Medal and the Army Achievement Medal.  He received an enlisted evaluation report score of 121 and it stated he was to be promoted ahead of his peers.  He was promoted to pay grade E-5 in 19 months.  His career ended within 90 days of a personal issue with his first sergeant.

3.  He provides a copy of the following documents:

* his DD Form 214 for the period ending 12 July 1985
* End of Cycle Testing, M-16 Rifle Marksmanship Training, and 81mm Mortar Gunner’s Examination Certificates of Achievement, all dated
10 September 1987
* Individual Infantry Training diplomas, dated 10 September 1987
* Airborne Course diploma, dated 2 October 1987
* a DA Form 3647 (Inpatient Treatment Record Cover Sheet), dated
19 February 1988
* 
DA Form 2166-6 (Enlisted Evaluation Report) for the period ending August 1988
* three DA Forms 4856 (General Counseling Form), dated between
* 15 August and 12 September 1988
* Tacoma Fire Department Award of Valor, dated 13 September 1994
* a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 26 September 1988
* a letter from Federal Way Motor Company, Inc., dated 26 September 1988
* a DA Form 3822 (Report of Mental Status Evaluation), dated 13 October 1988
* his DD Form 214 for the period ending 27 December 1988 and Honorable Discharge Certificate
* The National Registry of Who’s Who acceptance letter, dated 24 July 1998
* National Guard Bureau (NGB) Reduction of Negative End Strength and the Opening of Selection Recruiting Lever memorandum, dated 14 August 2009

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 records show he enlisted in the Regular Army (RA) in pay grade E-1 on 13 July 1982.  He completed training and was awarded military occupational specialty (MOS) 31M (Multichannel Communications Equipment Operator).  He was promoted to pay grade E-5 on 20 September 1984.

3.  He was honorably released from active duty on 12 July 1985 at the expiration of his term of service.  Item 13 (Decorations, Medal, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was 

awarded the Army Achievement Medal, Army Good Conduct Medal, Army Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  He enlisted in the Texas ARNG (TXARNG), in pay grade E-5, on 4 October 1986.  At his request, he was honorably released from the TXARNG on 1 May 1987 and credited with completing 6 months and 28 days of net service this period.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining statutory obligation.

5.  He enlisted in the RA, in pay grade E-5, on 5 June 1987 for 4 years.  He completed training and he was awarded MOS 11B (Infantryman).

6.  A DA Form 3647 shows he was admitted to the Madigan Army Medical Center, Fort Lewis, WA psychiatric clinic on 18 February 1988 and diagnosed with a personality disorder.  He was returned to duty on 19 February 1988.

7.  His DA Form 2166-6 for the period June through August 1988 shows in Part VI - Evaluation of Potential, the rater placed him in the “Promote Ahead of Peers” block and Part VI - Score Summary, a report score of 121.

8.  He received counseling on 15 and 22 August and 12 September 1988 for being late for work and his bad judgment.

9.  On 26 September 1988, he was punished under Article 15, UCMJ, for failing to obey a lawful order on 14 and 15 September 1988.  His punishment consisted of a forfeiture of pay for one month and 30 days of extra duty.  He elected to appeal the punishment.  On 2 October 1988, his appeal was granted and so much of the punishment exceeding 10 days of extra duty was suspended until
1 April 1989.

10.  He received counseling on 26 and 28 September 1988 for being guilty of two counts under Article 15 and his failure to comply with oral and written guidance concerning his extra duty place and times of duty.

11.  On 13 October 1988, he underwent a mental status evaluation for the purpose of being considered for discharge because of a personality disorder.  His behavior was found to be normal and he was fully alert and fully oriented.  His mood or affect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The military psychiatrist found him to be mentally responsible and to have the mental capacity to understand and participate in separation proceedings.  The psychiatrist diagnosed him as having a Narcissistic Personality Disorder.  The psychiatrist stated the disorder was so severe that the applicant’s ability to function effectively in a military environment was significantly impaired.  Problems presented by the applicant were not amenable to hospitalization, brief treatment, a rehabilitative transfer, disciplinary actions, retraining, or an MOS reclassification.  The psychiatrist recommended administrative separation.

12.  On 27 October 1988, his company commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-13, because he had been diagnosed with a personality disorder by competent medical authority.

13.  On 1 November 1988, the applicant, after consulting with counsel, acknowledged receipt of the proposed separation action under the provisions of Army Regulation 635-200, chapter 5, its effect, and the rights available to him.  He elected not to submit statements in his own behalf.  He also acknowledged that he would be ineligible for enlistment in the Army for a period of two years after discharge.

14.  On 10 November 1988, his battalion commander recommended approval of the separation from the Army under the provisions of Army Regulation 635-200, chapter 5-13.

15.  On 20 December 1988, the separation authority approved the separation and directed the issuance of an Honorable Discharge Certificate and separation program designator (SPD) code of “JFX.”

16.  He was honorably discharged on 27 December 1988, in pay grade E-5, under the provisions of Army Regulation 635-200, paragraph 5-13, for personality disorder.  He was credited with completing 1 year, 6 months, and 23 days of net active service this period.  Item 26 of his DD Form 214 shows the entry “JFX,” item 27 shows the entry “RE-3,” and item 28 shows the entry “Personality Disorder.”

17.  He provides a copy of a letter from the Federal Way Motor Company, Inc., attesting to him being a satisfied customer.  On 13 September 1994, he received a Tacoma Fire Department Award of Valor for an act of courage.

18.  In an NGB Reduction of Negative End Strength and the Opening of Selection Recruiting Lever memorandum, NGB advised The State Adjutant 
Generals of the opening of some recruiting levers to assist in meeting their Fiscal Year 2009 end strength ceiling.  The memorandum also stated that applicants requiring a State level conduct waiver may enlist.

19.  Army Regulation 635-200, chapter 5, paragraph 5-13, then in effect, specified a Soldier could be separated for personality disorders (not amounting to disability) that interfered with assignment or with performance of duty, when so disposed as indicated in the Soldier's ability to perform duty.  The diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who was privileged to conduct mental health evaluations for the Department of Defense components.  When it was determined that separation under that paragraph was appropriate, the unit commander would take the actions specified in the notification procedure.  The service of a Soldier separated per that paragraph would be characterized as honorable unless an entry-level separation was required under chapter 3, section III.

20.  Army Regulation 635-5-1 (SPD Codes), then in effect, prescribed 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 those stated reasons.  The SPD of "JFX" as shown on his DD Form 214 was appropriate when the narrative reason for involuntary discharge was "Personality Disorder” and the authority for discharge was Army Regulation
635-200, paragraph 5-13.

21.  The SPD/RE Code Cross Reference Table, then in effect, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed SPD codes with their corresponding RE codes.  The SPD code of "JFX” had a corresponding RE code of "3."

22.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), then in effect, provided that prior to discharge or release from active duty, individuals would be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of the regulation included a list of Armed Forces reentry codes, including Regular Army RE codes.

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met
* RE-3 applied to persons not qualified for continued Army service, but the disqualification was waivable





DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to change of his separation code, RE Code, and narrative reason for separation shown on his DD Form 214 for the period ending 27 December 1988.

2.  His contentions have been acknowledged.  However, the evidence of record shows that during his period of service from 5 June 1987 to 27 December 1988 he underwent a mental status evaluation in which he was assessed and diagnosed with a personality disorder.  The evaluating psychiatrist stated the disorder was so severe that the applicant’s ability to function effectively in a military environment was significantly impaired and he recommended the applicant's separation.

3.  The evidence also shows he acknowledged the proposed elimination action to separate him for personality disorder under the provisions of Army Regulation 635-200, chapter 5-13 and elected not to submit statements in his own behalf.  He also acknowledged he could apply for enlistment in the Army two years after his discharge, in effect 27 December 1990.  Therefore, the evidence clearly shows he understood the reason for discharge and the type of discharge he would be issued and his ineligibility timeframe to apply for enlistment.

4.  He has failed to show through the evidence submitted or the evidence of record that the separation code, RE Code, and narrative reason for separation of his DD Form 214 for the period ending 27 December 1988 are incorrect.  

5.  His 1988 discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and reason for the separation were appropriate considering all of the facts of the case.

6.  It is noted RE code of "3" is waivable and he became eligible to apply for enlistment in the Army on 26 December 1990.  Therefore, if he wishes to enlist in the Army or ARNG, he should seek the guidance from the appropriate Service recruiters/career counselors in seeking such a waiver if he is otherwise qualified.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100007021



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ABCMR Record of Proceedings (cont)                                         AR20100007021



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