BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100026439 


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 that his reentry eligibility (RE) code of "RE-3" be changed to "RE-1" and his separation program designator (SPD) code of "JFX" be changed so that he may reenter the Army.

2.  The applicant states he never had any related mental illness and during his separation medical examination the doctor clearly gave him a choice of whether or not to be discharged.  He adds he is in perfect physical and mental condition at this moment.  He states he has exhausted all administrative avenues to change the assigned RE and SPD codes so he may serve in the U.S. Armed Forces.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a mental health services adult diagnostic assessment, a Standard Form 513 (Medical Record Consultation Sheet – Psychiatric), a DD Form 1966 (Record of Military Processing – Armed Forces of the United States), and a social security number printout.

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 DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 5 September 2006.  He was discharged from the USAR on 17 September 2006 to enlist and enter active duty in the Regular Army (RA) for a period of 3 years and 21 weeks on 18 September 2006.  His enlistment documents show the applicant does not have a middle name and his social security number is "XXX-XX-8238."

3.  Upon completion of training, he was awarded military occupational specialty 88M (Motor Transport Operator).

4.  On 27 September 2007, the applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-13, because of a personality disorder that interferes with assignment or the performance of duty.  The reason for the commander's proposed action was based on the determination by an Army psychiatrist that the applicant suffers from a schizotypal personality disorder.  The commander noted the applicant had been referred to Community Mental Health Services at Irwin Army Hospital, Fort Irwin, CA; he had gone to at least 16 appointments; and he had seen several medical health professionals, including three doctors at two different hospitals.  The applicant was advised of his rights and the separation procedures involved.

5.  On 27 September 2007, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of his rights.  The applicant:

	a.  waived representation by military counsel;

	b.  elected not to submit statements in his own behalf; 

	c.  was advised he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him; and

	d.  he placed his signature on the document.

6.  The immediate and intermediate commanders recommended approval of the applicant's separation action.

7.  On 3 October 2007, the separation authority approved the chain of command's recommendation for discharge of the applicant and directed that he be discharged from the U.S. Army under the provisions of Army Regulation 
635-200, paragraph 5-13, because of a personality disorder and that he receive an Honorable Discharge Certificate.

8.  The applicant's DD Form 214 shows he was honorably discharged on 12 October 2007 under the provisions of Army Regulation 635-200, paragraph 
5-13, because of a personality disorder.  He completed 1 year and 25 days of active service.

	a.  Item 26 (Separation Code) shows the entry "JFX."

	b.  Item 27 (Reentry Code) shows the entry "3."

9.  In support of his application, the applicant provides the following documents:

	a.  A letter and Adult Diagnostic Assessment completed on 23 February 2009 by S____ J. E____, Licensed Master Social Worker (LMSW), Pawnee Mental Health Services, show that during the applicant's appointment with the LMSW he did not appear to be suffering from any mental health disorder, he assured her that his history of anxiety is no longer an issue, and he appeared to have a positive relationship with his wife and son.

	b.  A Standard Form 513, dated 17 April 2009, shows the applicant was a Kansas Army National Guard (KSARNG) recruit applicant and was referred by an official of the Kansas City Military Entrance Processing Station for a psychiatric consult.  The consulting psychologist indicated the applicant provided a summary of his prior military service and discharge and a copy of the LMSW's diagnostic evaluation, and he denied somatic and emotional complaints.  The psychologist agreed with the LMSW's recent mental evaluation and found no evidence of significant psychopathology.  He added the applicant was likely affected by transient situational factors during his prior military service which should not preclude his new enlistment.  The Patient's Identification section shows the applicant's name with a different social security number than that which appears in his official military personnel file (OMPF).

	c.  Page 1 of a DD Form 1966 that the applicant apparently completed for the purpose of his enlistment in the KSARNG shows a different social security number in item 1 (Social Security Number) than that which appears in the applicant's OMPF and item 2 (Name) shows a middle name that is not recorded in his OMPF.

	d.  A Social Security Administration Social Security Number Printout, dated 22 June 2009, shows social security number "XXX-XX-2088" is assigned to the applicant.

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA, USAR, and ARNG.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE-3 applies to individuals who are not qualified for continued Army service, but the disqualification is waivable.  This means that Soldiers assigned an RE-3 are ineligible for enlistment unless a waiver is granted.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

11.  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 identifies the SPD codes to assign to enlisted Soldiers administratively separated and shows the SPD code of "JFX" for those involuntarily discharged under the provisions of Army Regulation 635-200, paragraph 5-13, because of a personality disorder.

12.  The SPD/RE Code Cross Reference Table shows the RE code of "3" as the proper RE code to assign to Soldiers with an SPD code of "JFX."

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.

	b.  Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214.  It shows for:

		(1)  item 26 enter the proper SPD code representing the specific authority for separation and

		(2)  item 27 that Army Regulation 601-210 determines RA, USAR, and ARNG reentry eligibility and provides regulatory guidance for RE codes.


14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code of "3" and SPD code of "JFX" should be changed so he may serve in the U.S. Armed Forces.

2.  The applicant's contentions were carefully considered.

	a.  The evidence the applicant provides shows a recent mental evaluation found no evidence of significant psychopathology or any mental health disorder.

	b.  The psychologist who examined the applicant for the purpose of his enlistment in the KSARNG opined that transient situational factors during the applicant's prior military service should not preclude his enlistment in the U.S. Armed Forces.

	c.  These two medical opinions were rendered approximately 18 months after the applicant's discharge.

3.  The evidence of record shows the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-13, based on a personality disorder was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  Thus, it is presumed the applicant was properly diagnosed by competent military medical personnel at the time of his separation processing.  As a result, the applicant's discharge is presumed proper and equitable.

5.  Records show that RE code "3" establishing the applicant's ineligibility for enlistment/reenlistment without an approved waiver was correctly entered on his DD Form 214 in accordance with governing regulations.  In addition, the appropriate SPD code of "JFX" was correctly entered on his DD Form 214 based on the reason for his separation (i.e., personality disorder).  Thus, the entries for the reentry and separation codes that are shown on the applicant's DD Form 214 are appropriate and correct.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20100026439



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ABCMR Record of Proceedings (cont)                                         AR20100026439



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