IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100016953 


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 item 26 (Separation Program Designator (SPD) Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.

2.  The applicant states item 28 (Narrative Reason for Separation) of his DD Form 214 cites mental or physical condition.  In May of 2005 he was diagnosed with Dysthymic Disorder after serving in Korea and Iraq.  This impaired his ability to function as a Soldier and falls under the guidelines of a disability under regulations for post traumatic stress disorder (PTSD) after serving in an imminent danger pay zone.

3.  The applicant provides his DD Form 214, a memorandum, and a Department of Veterans Affairs (VA) statement.

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 that after having prior service in the Army National Guard he enlisted in the Regular Army on 13 May 1997.  He held military occupational specialties 15G (Aircraft Structural Repairman) and 19K (M-1 Armor Crewman).

3.  His records also show he served in Korea from on or around July 2002 to on or about June 2003 and Iraq from 1 February 2004 to 14 July 2004.

4.  His records further show he was counseled numerous times between 29 September 2004 and 12 January 2005 for failure to report and being late for duty while assigned to Fort Polk, LA.

5.  On 31 January 2005, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty.

6.  His service medical records are not available.  

7.  On 11 May 2005, while assigned to Hanau, Germany, he underwent a mental health evaluation.  The examining psychiatrist diagnosed him with Dysthymic Disorder and noted he had not responded to numerous medical interventions.  The psychiatrist stated the applicant's psychiatric condition seriously impaired his ability to function as a Soldier and recommended he be discharged expeditiously.  

8.  On 7 July 2005, he underwent a second mental evaluation.  The examining psychiatrist noted the applicant was mentally responsible, did meet retention requirements, and cleared him for discharge action.

9.  On 8 August 2005, the applicant's immediate commander notified him that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-17, due to other designated physical or mental conditions.  The immediate commander noted the applicant had a mental condition which impaired his ability to effectively perform his military duties.

10.  On 8 August 2005, the applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; and of the procedures and rights that were available to him.  He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life.  He declined to submit a statement on his own behalf. 

11.  On 21 August 2005, his chain of command recommended approval of his discharge and recommended his service be characterized as honorable.

12.  Subsequent to the chain of command's recommendation, the separation authority approved the applicant's discharge under Army Regulation 635-200, paragraph 5-17, and directed the issuance of an Honorable Discharge Certificate.  On 15 October 2005, the applicant was discharged accordingly.  

13.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, with an honorable characterization of service.  He completed a total of 8 years, 5 months, and 3 days of creditable active service with no lost time.  Item 26 of this form shows "JFV" and item 28 shows "Physical Condition, Not a Disability."  

14.  The applicant provides an undated VA statement wherein it states he has been attending PTSD groups at the Temple, TX, VA Center.

15.  Army Regulation 635-200, Chapter 5, paragraph 5-17 states, in pertinent part, that commanders who are special court-martial-convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated 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. 

16.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directives) for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  The SPD code of JFV is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-17.  Additionally, "physical condition, not a disability" is the proper narrative reason for separation for Soldiers separated with an SPD code of JFV.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the SPD code on his DD Form 214 should be corrected.

2.  The evidence of record confirms he was diagnosed with a disorder that impacted his ability to function as a Soldier by competent medical authority.  Based on this diagnosis, he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17.  The SPD code and narrative reason for separation were assigned in accordance with the applicable regulations.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  His service medical records are not available, and he has provided no documentary evidence to show the SPD code or the narrative reason for his separation is either incorrect or unjust.  In view of the foregoing, there is no basis for granting the 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)                                         AR20100016953



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ABCMR Record of Proceedings (cont)                                         AR20100016953



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