BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120002981 


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 a change to his reentry (RE) code.  

2.  The applicant states he was forced out of the Army and would like the opportunity to prove he is physically and mentally fit to serve.  

3.  The applicant provides no documentary evidence in support of his application.  

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 he enlisted in the Regular Army, on 
25 July 2005, and was trained in and awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  His record shows he was advanced to specialist (SPC)/E-4, on 1 February 2008, and this is the highest rank he attained while serving on active duty.  

3.  A MEDCOM Form 4038 (Report of Behavioral Health Evaluation) in the applicant's record shows he underwent a mental health examination on
17 August 2008.  The examining psychiatrist diagnosed the applicant with an “adjustment disorder, mixed disturbance of emotions and conduct, depression”  The examiner psychiatrically found the applicant had the mental capacity to understand and participate in the proceedings and recommended the applicant’s separation under the provisions of paragraph 5-17 (Condition not a disability), Army Regulation 635-200.

4.  On 31 August 2008, the unit commander notified the applicant action was being initiated to separate him under the provisions of paragraph 5-17, Army Regulation 635-200 based on the applicant having been diagnosed with an adjustment disorder with mixed disturbance of emotion and conduct.

5.  On 3 September 2008, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him in connection with the separation action.  Subsequent to receiving this counsel, the applicant waived his right to submit statements in his own behalf and his right to an administrative separation board.  

6.  The separation authority approved the applicant’s separation under the provisions of paragraph 5-17, Army Regulation 635-200 and directed the applicant’s service be characterized as honorable.  On 31 October 2008, the applicant discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he held the rank of SPC/E-4 and had completed 2 years, 3 months, and 6 days of active military service.  It also shows he was separated under the provisions of paragraph 5-17, Army Regulation 635-200, by reason of a “condition, not a disability” and that based on this authority and reason for discharge, he was assigned a Separation Program Designator (SPD) code of "JFV" and a corresponding RE code of "3."  



7.  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 (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  An RE code of "3" applies to persons who have a waivable disqualification.  Chapter 4 states recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are responsible for processing waivers.  

8.  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 provides for assigning the SPD code JFV to Soldiers separated under the provisions of paragraph 5-17, Army Regulation 635-200 by reason of condition, not a disability.  The Department of the Army SPD/RE Code Cross Reference Table stipulates that an RE code of "3" is the proper code to assign members who are separated for a condition, not a disability under the provisions of paragraph 5-17, Army Regulation 635-200 and who are assigned an SPD code of "JFV."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change his RE code has been carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record confirms competent military medical authorities determined the applicant was suffering from a “mixed adjustment disorder” which was determined to be a “condition, not a disability” and recommended his separation for this reason. 

2.  The record confirms his separation processing 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 assigned is based on the SPD code assigned as a result of the authority and reason for separation and RE code of "3" was the proper code to assign the applicant based on the authority and reason for separation.  As a result, the RE code of "3" was and remains valid.  The applicant is advised that an RE code of "3" indicates a waviable disqualification.  Therefore, if he desires to reenlist he should contact local recruiting officials who 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)                                         AR20120002981



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ABCMR Record of Proceedings (cont)                                         AR20120002981



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