IN THE CASE OF:	  

		BOARD DATE:	    26 July 2011

		DOCKET NUMBER:  AR20100030183 


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 Separation Program Designator (SPD) code, reentry eligibility (RE) code, and reason for separation be changed so that he may reenter the military.  He also requests that his physical profile be changed to show no restrictions or assignment limitations.

2.  The applicant states his discharge was partially facilitated by the Army psychiatrist who treated him.  He contends that since his discharge, he has not required medication or mental health services and underwent psychiatric evaluations that show he is fit for military service.  

3.  The applicant provides a psychological evaluation, a DD Form 214 (Certificate of Release or Discharge from Active Duty), and a DA Form 4707 (Entrance Physical Standards Board Proceedings).

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 14 September 2006 and upon completion of initial entry training was awarded military occupational specialty 11B (Infantryman).

3.  A DA Form 4707, dated 15 February 2007, shows he underwent a mental health evaluation while at Fort Benning, GA and was diagnosed with a depressive disorder, existed prior to service.  The evaluating physician concluded he did not meet the medical fitness standards for enlistment and recommended his separation from the military.  This form also shows he was given a permanent physical profile that precluded assignments where psychiatric care is not available and his handling of weapons and ammunition.

4.  His separation proceedings are not available for review.  However, his DD Form 214 shows he was separated under the provisions of Army Regulation 
635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, by reason of condition, not a disability.  He was given a separation code of "JVF" and an RE code of 3.

5.  He provided a psychological evaluation, dated 25 April 2010, conducted by the Center for Behavioral Medicine, Brookfield, WI, which concluded that he is fit to serve.

6.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that Soldiers may be separated on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to, chronic air and seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties are significantly impaired.  

7.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army and the U.S. Army Reserve.  This regulation provides 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.  Chapter 3 of this 
regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

   a.  RE-3 applies to persons not qualified for continued Army service at the time of discharge, but the disqualification is waivable.

	b.  RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, so long as all other qualifications are met.

8.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities and the reasons for the separation of members from active military service and the SPD codes to be used.  The regulation shows that the SPD code of JVF as shown on the applicant's DD Form 214 is appropriate for involuntary discharge when the narrative reason for discharge is condition, not a disability and the authority for discharge is Army Regulation 635-200, paragraph 5-17.

9.  The SPD Code/RE Code Cross Reference Table states that when the SPD code is JVF then an RE code of 3 will be assigned.

10.  Army Regulation 40-501 (Standards of Medical Fitness) states the physical profile system is based primarily upon the function of body systems and their relation to military duties and is applicable to:

	a.  registrants who undergo an induction or pre-induction medical examination related to Selective Service processing;

	b.  all applicants examined for enlistment, appointment, or induction; and

	c.  members of any component of the U.S. Army throughout their military service, whether or not on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his SPD code, RE code, and reason for separation should be changed so that he may reenter the military.


2.  His separation proceedings are not available.  However, in the absence of evidence to the contrary administrative regularity is presumed, and therefore it is 
presumed that he was properly separated under the provisions of Army Regulation 635-200, paragraph 5-17 by reason of condition, not a disability.  Based on the authority and reason for separation, he was properly assigned an SPD code of JVF and an RE code of 3 in accordance with the applicable regulations.

3.  He has failed to provide evidence that an error exists on his DD Form 214 or that his discharge was in error or unjust.  Therefore, there is no basis to grant the relief requested.  

4.  In reference to his request that his physical profile be changed to show no restrictions or assignment limitations, he does not fall under the category of individuals to whom the physical profile system is applicable.  Therefore, there is no basis to grant his request.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, an RE code of 3 is waivable.  He should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code 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)                                         AR20100030183



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ABCMR Record of Proceedings (cont)                                         AR20100030183



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