IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110004473 


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 narrative reason for separation and reentry (RE) code be changed.

2.  The applicant states:

* His personality disorder was "sparked" from being ostracized by his fellow Soldiers based on his sexual orientation
* He has never had any disciplinary action
* He was not a "practicing" homosexual
* His advanced judo training and powerful stature kept it from ever becoming physical abuse but the mental ostracizing and ridicule was harrowing
* There are avenues now that were not in place then that would have let him pursue options that would have allowed him to continue his military career
* He had a previous period of enlistment from June 1986 to June 1989 which was served honorably
* Since his discharge he has acquired his teaching certificate
* He is considered an outstanding teacher and employee
* He is not open about his sexuality for obvious reasons
* Laws have changed that allow gay servicemen to serve in the military for the good of the country
* If these avenues had been in place during his second enlistment he would have remained in
* He wants to enlist in the Reserves
3.  The applicant provides no documentary evidence.

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.  Having prior active service in the Regular Army (RA) from 1 July 1986 to 
26 June 1989, he enlisted in the RA on 30 March 1995 for a period of 3 years.  He trained as a combat engineer.

3.  His mental status evaluation is not available.  However, records indicate the applicant was diagnosed with a personality disorder on 25 May 1995 by a mental health officer (lieutenant, Medical Corps, U.S. Navy).     

4.  Discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-13, for a personality disorder were initiated on 30 August 1995.  The applicant consulted with counsel, waived his rights, and elected not to submit a statement in his own behalf.  On 5 September 1995, the separation authority approved the recommendation and directed that the applicant be furnished an honorable discharge.

5.  On 15 September 1995, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-13, for a personality disorder.

6.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 5-13."  Item 
26 (Separation Code) shows the entry "JFX."  Item 27 (Reentry Code) shows the entry "3."  Item 28 (Narrative Reason for Separation) shows the entry "PERSONALITY DISORDER."




7.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a Soldier may be separated for a personality disorder, not amounting to a disability under Army Regulation 
635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interferes with assignment to or performance of duty.  The regulation requires that the condition is a deeply-ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty.  The diagnosis of personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis.

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code JFX is personality disorder and the regulatory authority is Army Regulation 635-200, paragraph 5-13.

9.  Pertinent Army regulations provide 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 processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes.

* RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable
* RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated

10.  The SPD/RE Code Cross Reference Table, dated September 1993, shows that Soldiers given an SPD code JFX will be given an RE code 3.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed the applicant was properly diagnosed with a personality disorder by competent and appropriate military medical authorities.  


2.  He contends his personality disorder was "sparked" from being ostracized by his fellow Soldiers based on his sexual orientation.  However, the governing regulation states the condition is a deeply-ingrained maladaptive pattern of behavior of long duration so it is unlikely his personality disorder was "sparked" while in the Army.

3.  The narrative reason for separation and RE code used in the applicant's case are correct and were applied in accordance with the applicable regulations.  Therefore, there is no basis for granting his request to change his narrative reason for separation or RE code.

4.  His current RE code is a waivable code.  Therefore, the applicant may still apply for service in the Armed Forces and request the appropriate waiver.

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)                                         AR20110004473





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ABCMR Record of Proceedings (cont)                                         AR20110004473



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