IN THE CASE OF:	  

		BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100016652 


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 eligibility (RE) code of 3 be changed to an RE code of 1.  

2.  The applicant states he does not or has ever had the mental medical condition which was documented on his discharge form.  

3.  The applicant provides copies of:

* a letter, dated 23 February 2010, from his Congressional representative
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 5 July 2005
* a letter, dated 25 October 2009, from the Family Intervention Specialists, Inc.
* a Clinical Record, dated 2 March 2010, from the U.S. Army Recruiting Command (USAREC)

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 22 September 2004 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 21J (General Construction Equipment Operator).

3.  On 17 May 2005, the applicant was evaluated by a clinical neuropsychologist. The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in separation proceedings.

4.  On 23 May 2005, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave from on or about 20 April 2005 to on or about 13 May 2005.

5.  On 24 May 2005, the applicant was evaluated by the Chief, Inpatient Psychiatry, at Madigan Army Medical Center (MAMC). The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501.  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in separation proceedings.

6.  The examiner stated the applicant was seen in the MAMC Emergency Department and was subsequently admitted to inpatient psychiatry for evaluation of suicidal ideation after he impulsively overdosed on prescription medication.  The examiner stated the applicant currently lacked active suicidal or homicidal thoughts and was a low risk of harm to himself or others.  He did not require a medical evaluation board and could be dispositioned administratively.  The examiner diagnosed the applicant with an adjustment disorder with mixed disturbance of conduct and emotions.  He recommended the applicant be separated from the service under the provisions of paragraph 5-17 of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations).  

7.  On 24 May 2005, the applicant received a routine follow-up appointment with the licensed clinical psychologist.  The examiner determined the applicant to be at moderate risk for self harm.  A plan for increased monitoring of the applicant seemed appropriate.  He was scheduled for a follow-up safety check appointment on 26 May 2005.

8.  The applicant's commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph     5-17 (Other Designated Physical or Mental Conditions).  The commander stated the reason for his proposed separation action was: the applicant having been diagnosed with an adjustment disorder with mixed disturbance of conduct and emotions, a mental condition that could potentially affect his performance.

9.  The commander also advised the applicant of his right to: 

* consult with legal counsel prior to completing his acknowledgement
* submit a statement in his 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

10.  The applicant consulted with counsel and he waived his rights.

11.  The applicant's commander recommended him for separation under the provisions of paragraph 5-17 of Army Regulation 635-200.  The commander stated the applicant had been diagnosed with an adjustment disorder with mixed disturbance of conduct and emotions, a mental condition that could affect his duty performance.

12.  The appropriate authority approved the recommendation for discharge and directed he be furnished an Honorable Discharge Certificate.

13.  On 5 July 2005, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-17.  He had completed 8 months and 21 days of active service.  Item 26 (Separation Code) of the applicant's DD Form 214 contains the separation program designator (SPD) code of JFV.

14.  The applicant submitted a letter, dated 25 October 2009, from the Family Intervention Specialists, Inc.  The examiner stated the applicant was seen at the practice on 23 and 26 October 2009 for an evaluation to determine if the adjustment disorder with mixed disturbance of emotion and conduct was still an active and accurate diagnosis.  The examiner stated the results of the evaluation showed no significant stressors or psychiatric symptomology at all.  There were no clinically significant concerns obtained as a result of this evaluation and the applicant's mental status is normal.  
15.  The Clinical Record from USAREC, dated 3 February 2010, submitted by the applicant indicates that the Office of the USAREC Surgeon disapproved a medical waiver for the applicant for enlistment.  USAREC indicated that the peculiar rigors of military training could further aggravate the medical condition in this case causing the high probability of subsequent lost time and/or assignment restriction.  It was also noted the Psych opinion was appreciated.  However, medical evidence did not support further processing.

16.  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.

17.  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, dated 31 March 2003, stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JFV.

18.  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 his RE code of 3 should be changed to 1.
2.  The applicant's commander's recommendation for his discharge was supported by the diagnosis of an adjustment disorder with mixed disturbance 
of conduct and emotions made by the Chief, Inpatient Psychiatry, MAMC on 
24 May 2005.  Therefore, the reason for the applicant's discharge the assigned SPD code of JFV are correct.

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

4.  The medical opinion provided by Family Intervention Specialists, Inc was noted.  However, the opinion provided was based on an evaluation made over 
4 years after the applicant was discharged.  Therefore, opinion does not show the medical diagnosis made by MAMC on 24 May 2005 was in error or that USAREC's decision not to approve a medical waiver for him was not based on valid considerations for his health.  

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)                                         AR20100016652





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ABCMR Record of Proceedings (cont)                                         AR20100016652



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