IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100012325 


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, her reentry eligibility (RE) code of 3 be changed.

2.  The applicant states during the time of her training she learned of two deaths in her family.  She became very sad and always worried about other family members and their well-being.  When she told her drill sergeant about it he took it upon himself to state she was unstable.  She was young and didn't know better and she just started signing papers without getting a full understanding.  She states she is not now nor has she ever been in any type of mental therapy.  Her purpose in applying to the Board is so she can reenter the Army.

3.  The applicant provides no additional evidence in support of her 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 military personnel records show she enlisted in the Regular Army (RA) on 1 April 2005 for a period of 3 years.  

3.  On 25 April 2005, the applicant was examined by a PhD Clinical Psychologist. The examiner found her behavior to be normal and she was fully alert and fully orientated.  She had a clear thinking process, normal thought content, and a good memory.  She was anxious and depressed.  The examiner found she had the mental capacity to understand and participate in the proceedings and she was mentally responsible.  The examiner evaluated the applicant for a disorder currently manifesting in disturbances of perception, thinking, emotional control or behavior sufficiently severe that her ability to effectively perform military duties was significantly impaired.

4.  The examiner stated the applicant had already engaged in self-injurious behavior and her immaturity and impulsiveness was likely to continue.  The examiner advised that this will potentially interfere with assignment or performance of duty, to include military training.

5.  The examiner stated there was no indication that her disorder had been aggravated by her relatively short period of active duty.  This condition was not amenable to rehabilitation while in initial entry training and does not amount to a disability.  The examiner stated the applicant should be removed from training and training with weapons is specifically not recommended.

6.  The applicant was counseled by her commander, first sergeant, and platoon sergeant.  They recommended her separation from the service due to her not being fully capable of being a Soldier at that time.  They also stated she was unable to adapt to the military life style.

7.  On 27 April 2005, the applicant's commander notified the applicant that he was initiating action to separate her under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions). The commander stated the reason for his proposed separation action was: "Other Medical Conditions" for emotional control, behavioral problems, and/or physical problems incompatible with military service.

8.  The commander also advised the applicant of her right to: 

* consult with legal counsel prior to completing her acknowledgement
* submit a statement in her own behalf 
* obtain copies of documents that would be sent to the separation authority
* waive any of these rights
* withdraw any waiver at any time prior the separation authority approving her separation

9.  On 27 April 2005, the applicant declined the opportunity to consult with counsel and she waived her rights.

10.  On 27 April 2005, the applicant's commander recommended her separation under the provisions of Army Regulation 635-200, paragraph 5-17.  The commander stated the applicant was confirmed with a diagnosis of "Other Medical Conditions," for emotional control and behavioral problems incompatible with military service.

11.  On 8 May 2005, the appropriate authority approved the recommendation for discharge.  The requirement for rehabilitative transfer was waived because the applicant had a condition that was not compatible with satisfactory service.  She had a disorder currently manifesting disturbances of perception, thinking, emotional control physical problems, or behavior sufficiently severe that her ability to effectively perform military duties was significantly impaired.  Further attempt to train were not justified.

12.  On 9 May 2005, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-17.  She had completed 1 month and 9 days of active service.  Item 26 (Separation Code) of the applicant's DD Form 214 (Certificate of Discharge or Release from Active Duty) contains the separation program designator (SPD) code of "JFV."

13.  Army Regulation 635-200, paragraph 5-17, provides commanders with the authority to approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding those personnel who did not meet procurement medical fitness standards and those diagnosed with a personality disorder.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

14.  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 the SPD code "JFV" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of "Physical Condition, not a disability."  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of "JFV."

15.  Army Regulation 635-200 further states, in pertinent part, 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 RA and the U.S. Army Reserve.  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her RE code of 3 should be changed so she can reenter the military.

2.  The applicant's commander's recommendation for her discharge was supported by counseling from her commander, first sergeant, and platoon sergeant.  The recommendation was also supported by a PhD Clinical Psychologist. The applicant was notified of the reason and the type of discharge she was being recommended for.  She declined to consult with counsel and she waived her rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize her rights.

3.  Based on the reason for the applicant's discharge the SPD code of JFV is correct.

4.  According to the SPD/RE Code Cross-Reference Table the appropriate
RE code for the SPD code of JFV is RE-3.  Therefore, the applicant's assigned
RE code of 3 is also correct.

5.  The applicant is advised that although her RE code was properly assigned, this does not mean she is totally disqualified from returning to the military.  The disqualification upon which the RE code of 3 was based may be waived for enlistment purposes.  The applicant is advised that if she desires to reenter the military, she should contact a local recruiter who can best advise her on her eligibility for returning to military service.  These individuals can best advise a former service member of the needs of the military at the time and are responsible for processing enlistment 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)                                         AR20100012325



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ABCMR Record of Proceedings (cont)                                         AR20100012325



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