BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110003290 


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 so he can have the opportunity to enlist in the Air National Guard.

2.  The applicant did not submit a statement.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 12 January 2006.  He was not awarded a military occupational specialty (MOS).  The highest rank he attained while serving on active duty was private (E-1).
3.  His record contains two DA Forms 4856 (Development Counseling Form) which shows on:

	a.  21 February 2006 – he was counseled regarding his placement by the
Community Mental Health Services (CMHS) on a command interest profile due to his behavior; and

	b.  24 February 2006 – he was informed that he was being recommended for separation in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions).

4.  On 23 February 2006, he underwent a mental status evaluation wherein his Axis I diagnosis was adjustment disorder with anxiety and depressed mood.  He was found not to appear to be at imminent risk to harm himself or others, and appeared appropriate in thought and behavior, met the retention standards in Army Regulation 40-501 (Standards of Medical Fitness), and there was no psychiatric disease or defect that warranted disposition through medical channels.  The examiner also stated that he was able to distinguish between right and wrong, had the mental capacity to understand and participate in administrate/board proceedings, and his condition and problems were not, in the opinion of the examiner, amenable to hospitalization, treatment, transfer, reclassification, and a rehabilitate transfer would serve no purpose or produce a quality Soldier.  The examiner strongly recommended a discharge in accordance with Army 635-200, paragraph 5-17.

5.  On 21 March 2006, his commander informed him that he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 
5-17.  The commander stated the reason for his proposed separation action was his having been diagnosed as having a mental condition that inferred with his ability to function in the military.  The commander also stated that his condition was so severe that his ability to function in a military environment was significantly impaired.  

6.  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 his separation

7.  The applicant consulted with counsel and waived his rights.

8.  On 22 March 2006, his 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 a mental condition and had failed to adapt.

9.  The intermediate commander recommended approval and that he be furnished an uncharacterized discharge.

10.  His separation packet is absent the approval authority's statement; however, the DD Form 214, dated 31 March 2006, shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17.  He had completed 2 months and 19 days of active service.  Item 26 (Separation Code) of the applicant's DD Form 214 contains the separation program designator (SPD) code of JFV.  He was given an RE code of 3.

11.  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.

12.  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.

13.  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’s request that his RE-3 code be changed was carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief.  

2.  The applicant’s separation processing, to include the SPD and RE code assignments, was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  By regulation the RE code of RE-3 is the proper code to assign members separated under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other designated physical or mental conditions.  Therefore, the RE-3 code assignment was and remains valid.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  The applicant is advised that although his RE code has not been upgraded, this does not mean that he is disqualified from reenlistment.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of the disqualification.  Therefore, if he desires to reenlist, the applicant should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of RE codes. 


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)                                         AR20110003290



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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