IN THE CASE OF:	  

		BOARD DATE:  13 September 201213 September 2012

		DOCKET NUMBER:  AR20120004299 


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, in effect, correction of his DD Form 214 by changing his reentry (RE) code from RE-3 to RE-1.

2.  The applicant states his RE code is incorrect and he needs it changed to an RE-1 to reenlist in the Army National Guard.

3.  The applicant provides a doctor's note, dated 13 April 2011, and a self-authored statement.

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 5 June 2008 and held military occupational specialty 11B (Infantryman).  He was assigned to Company D, 2nd Battalion, 16th Infantry Regiment, Fort Riley, KS, from 8 October 2008 to 16 March 2009.  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  His record contains a developmental counseling form, dated 17 December 2008, wherein he was counseled for failing to show-up for a mental health appointment.

4.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice), dated 20 January 2009, wherein he accepted non-judicial punishment (NJP) for being disrespectful in language towards a noncommissioned officer.

5.  His record contains a developmental counseling form, dated 21 January 2009, wherein he was counseled for lying to his platoon leader and platoon sergeant, to avoid conducting training, stating his therapist requested his presence during walk-in hours for a consultation with a doctor.

6.  His record contains a developmental counseling form, dated 30 January 2009, wherein he was counseled for not having registration for his vehicle.

7.  His record contains a report to suspend favorable personnel action (FLAG), dated 2 February 2009, wherein his company commander initiated a nontransferable FLAG for elimination from military service.

8.  His record contains a developmental counseling form, dated 10 February 2009, wherein his squad leader counseled him because the company commander was initiating action to separate him from military service in accordance with paragraph 5-17 (Other Designated Physical or Mental Conditions) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) because a doctor at community health services had made the recommendation.

9.  On 24 February 2009, his company commander notified him of his intent to initiate separation action against him for other designated physical or mental conditions.  The specific reason was a diagnosis of an adjustment disorder with mixed disturbance of emotions and conduct.  His commander recommended the issuance of a general discharge.  

10.  On 24 February 2009, he acknowledged receipt of the separation notification memorandum and subsequently consulted with legal counsel.  He was advised 

of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

11.  On 13 March 2009, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-17 by reason of other designated physical or mental condition with an honorable discharge.

12.  He was discharged on 16 March 2009 under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability, with an honorable discharge.  He was assigned a separation code of "JFV" and an RE code 3.  This form also shows he completed 9 months and 
12 days of creditable active service.

13.  He submitted a doctor's note, dated 13 April 2011, which stated the patient (the applicant) “is medically and physically fit to enlist in the Army [and] has not been on prescription meds."

14.  He submitted a self-authored statement wherein he stated there were multiple deaths in his family.  His grandparents died and 2 months later his friend passed away.  The Army doctor wanted him to accept a hardship discharge to allow him to take care of his family business and reenlist 6 months later.  However, when he tried to reenlist he was told he had the wrong RE code.  He further stated he believes he has the right to serve his country.  He has been trying, unsuccessfully, to reenlist for 3 years.  He became a police officer and as such has passed many psychological evaluations.  Therefore, he believes the RE code he was assigned was unjust.

15.  Army Regulation 635-200, chapter 5, paragraph 5-17 states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability, sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.


16.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the US Army Reserve.  Table 3-1 included a list of the RA RE Codes.  

	a.  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army, qualified for enlistment if other criteria are met; and 

   b.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable, ineligible unless a waiver is granted.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies the SPD of "JFV" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a condition, not a disability.

18.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established an RE code of 3 as the proper RE code to assign Soldiers separated with an SPD code of "JFV."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was separated under the provisions of paragraph 5-17, Army Regulation 635-200 by reason of a physical condition, not a disability.  It further shows that based on this authority and reason for separation he was appropriately assigned an SPD code of "JFV" in accordance with the applicable regulation.  He was assigned a corresponding RE code of 3.  His assigned RE code was and remains valid.  

2.  The applicant is advised that although no change is being recommended to his RE code, this does not mean that he is disqualified from reenlistment.  An RE code of 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.  If the applicant still desires to reenter the Army he should contact a local recruiter who can best advise a former service member as to the needs of the Army at the time.

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)                                         AR20120004299



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ABCMR Record of Proceedings (cont)                                         AR20120004299



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