IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100010733 


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 his reentry (RE) code of RE-3 be changed to RE-1.

2.  The applicant states the circumstances under which he was discharged are not valid.  The RE code prevents reentering the military through the Officer Candidate School (OCS) and Officer Commissioning Programs as well as standard enlistment process.  The circumstances that determined his RE code do not warrant such a severe RE code.  He has Department of Veterans Affairs (VA) documentation to support this request.  

3.  The applicant provides the following documents in support of his application:

* VA psychological review
* Self-authored statement
* Two character references
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 enlisted in the Regular Army on 21 October 2004.  

3.  The applicant’s Medical Evaluation Board (MEB) proceedings are not available.  On 14 September 2007, an informal Physical Evaluation Board (PEB) found the applicant unfit for military service due to anxiety disorder with elements of depression, which cannot be separately rated due to inner-mixed symptoms.  The PEB recommended he be separated with severance pay and a combined disability rating of 10 percent.  

4.  The applicant was discharged on 22 November 2007 under the provisions of Army Regulation 635-40, paragraph 4-24b(3) by reason of physical disability with severance pay.  He completed 3 years, 1 month, and 2 days of active military service.

5.  His DD Form 214 shows he was issued an RE code of 3 and a Separation Program Designator (SPD) code of "JFL" due to disability, severance pay.

6.  In support of his claim, the applicant provided a self-authored statement in which he stated the following:

* He has a strong desire to reenter federal service as a member of the military
* He has worked with various recruiters who have been driven to help him reenter the military
* His RE code 3 holds him up from reentering the military and he would like it changed to a 1
* He intends to be commissioned as a lieutenant when he graduates from a 4-year bachelors degree program at Embry Riddle Aeronautical University
* He was discharged on an MEB for having symptoms of anxiety and depression
* He was examined by a VA psychologist and had no symptoms of Post Traumatic Stress Disorder (PTSD)
* He suffered emotionally after the loss of a very close mentor
* His discharge was conducted in a manner that did not allow for recovery

7.  The applicant provided two character references in support of his claim which attest to his work performance as a staff member of the 26th Alaska State Legislature.  
8.  The VA psychological report indicates the applicant’s symptoms of PTSD have been resolved completely and he no longer has symptoms of this condition.  The report also indicates the applicant has not required continuous medication to treat PTSD and he does not have any impairment of his social or occupational functioning due this condition.  

9.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-24b(3) lists separation for physical disability with severance pay.

10.  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 separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator “JFL” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Disability, Severance Pay” and that the authority for discharge under this separation program designator is “AR 635-40, paragraph 4-24b(3)."

11.  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 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–3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

12.  The SPD/RE Code Cross Reference Table establishes RE code 3 as the proper reentry code to assign to Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(3) for disability, severance pay.

13.  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 contends the circumstances under which he was discharged are not valid.  However, his service record does not contain evidence which supports his claim.  

2.  An informal PEB found the applicant physically unfit due to anxiety disorder with elements of depression and he was discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3) by reason of physical disability with severance pay.

3.  The applicant’s contention that his RE code prevents reentering the military through OCS, Officer Commissioning Programs, or enlistment process is acknowledged; however, it does not serve as a basis for changing a properly assigned reentry code, regardless of the Army’s current enlistment policies.

4.  The applicant's RE code is based on his reason for separation and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on physical disability with severance pay and he has provided no evidence sufficient to change the reason.  In view of the foregoing, there is no basis for granting relief in this case.

5.  The applicant’s VA psychological report is acknowledged.  The medical assessment by the VA that the applicant had no symptoms of PTSD does not serve as evidence that the basis for his medical separation was in error.  However, recruiting officials are required to process a request for waiver, and the appropriate medical authorities would then make a decision as to his medical fitness for enlistment.

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)                                         AR20100010733





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ABCMR Record of Proceedings (cont)                                         AR20100010733



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