BOARD DATE:	  23 May 2013

		DOCKET NUMBER:  AR20120020139


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 an upgrade of his reentry (RE) code from "RE-2" to "RE-1."

2.  The applicant states:

* he is requesting this change because he recently received a "full bill of health" from his doctor at the Department of Veterans Affairs (VA) Medical Center, and because of his service in Iraq during the surge
* he believes he should be granted relief because of the situation he was put through in "the breadbasket"
* if his records and RE code cannot be changed based on his service alone he would like his discharge changed to a hardship discharge, due to his son being abandoned by his mother
* he was discharged for this reason as well, although he did not have all the necessary documentation to support that fact at the time; however, he now has it

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and an Order for Custody/Visitation, issued by the Commonwealth of Virginia.

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.  On 4 August 2005, the applicant enlisted in the Regular Army.  He completed his initial entry training and was awarded military occupational specialty 92F (Petroleum Supply Specialist).  

3.  His record shows he served in Iraq from on or about 2 October 2006 through 1 October 2007.

4.  On 20 June 2008, he underwent a mental status evaluation at Fort Hood, TX, in conjunction with his separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17.  

a. The examining psychologist found that he displayed, or was:

* aggressive and suspicious behavior
* fully alert and oriented
* anxious and depressed mood or affect
* loosely connected thinking process
* normal thought content and a fair memory

   b. In the examining psychologist's opinion, the applicant had the capacity to understand and participate in separation proceedings; however, he did not state whether the applicant met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  Instead, he stated the applicant required further examination.

   c. The applicant's condition and the problems he presented were not, in the psychologist's opinion, amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.  It was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  The applicant was considered appropriate for any administrative action deemed appropriate by his chain of command.

5.  On 26 June 2008, the applicant was diagnosed with an adjustment disorder with mixed disturbance of emotions and conduct.  Traumatic Brain Injury (TBI) was ruled out.  The examining psychologist found the applicant met the criteria for administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17 (Other Mental Disorders), and strongly recommended the applicant's expeditious separation.

6.  On 1 July 2008, the applicant's immediate commander notified the applicant that his intent to initiate separation action against him for other designated physical or mental conditions.  The specific reason was the applicant's diagnosis of an adjustment disorder with mixed disturbance of emotions and conduct, with no report of TBI that is not conducive to continued military service.  His commander recommended he receive an honorable discharge.  The applicant acknowledged receipt of the notification memorandum.

7.  On 1 July 2008, the applicant's immediate commander recommended his separation under the provisions of Army Regulation 635-200, paragraph 5-17.  On 11 July 2008, his battalion commander endorsed his immediate commander's recommendation.  Both officers recommended he receive an honorable discharge.

8.  On 5 August 2008, the applicant met with counsel, and 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.  

9.  On 18 August 2008, the approval authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-17, and directed that he receive an honorable discharge.

10.  On 8 September 2008, he was discharged accordingly.  His DD Form 214 shows he completed 3 years, 1 month, and 5 days of net active service during this period of enlistment, including 1 year of foreign service.  His DD Form 214 further shows he was honorably discharged, under the provisions of Army Regulation 635-200, paragraph 5-17, based on a condition, not a disability, with the separation code of "JFV."  The RE code on the applicant's DD Form 214 is illegible.

11.  His record is void of any documentation, and he has not provided any documentation, that shows he suffered any physical or mental injuries or incidents during his period of service in Iraq.

12.  His record is void of any documentation, and he has not provided any documentation that shows his commander contemplated his separation for any other reason, including hardship.

13.  The applicant provides an Order for Custody/Visitation, issued by the Commonwealth of Virginia, which shows he is the father of Bxxxx Txxxx Sxxxxx; however, the child is in the custody of his mother, he has been denied any periods of unsupervised contact with the child, and he does not have visitation rights with the child.

14.  On 26 May 2010, the Army Discharge Review Board (ADRB) determined his narrative reason for discharge and RE code were proper and equitable and voted to deny his requested relief.

15.  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.  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, and includes a list of Armed Forces reentry codes, including RA     RE codes.  Table 3-1 includes 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;

   c. RE-4 applies to Soldiers not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications.

16.  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.

17.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table in effect at the time of his discharge shows the SPD code and a corresponding RE code.  The SPD code of "JFV" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his RE code was carefully considered; however, there is insufficient evidence to support his request.

2.  He contends he recently received a "full bill of health" from his doctor at the VA Medical Center; he endured difficult duty in Iraq; and he suffered a hardship when the mother of his son abandoned him.  The evidence of record does not support these contentions.

3.  The evidence of record shows he underwent a mental status evaluation that diagnosed him as having an adjustment disorder with mixed disturbance of emotions and conduct.  The military psychologist believed that it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  The applicant was considered appropriate for any administrative action deemed appropriate by his command.

4.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

5.  There is no evidence in the available records, and he did not provide sufficient evidence, to show that he his discharge was improper, or that he should have been discharged for hardship instead.  

6.  His RE code was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, for a condition, not a disability.  Absent the mental status evaluation that precipitated his separation processing, as apparent by the available record, there was no fundamental reason for him to request a discharge from the Army.  The underlying reason for his discharge was his diagnosis of an adjustment disorder with mixed disturbance of emotions and conduct.  The only valid narrative reason for separation permitted under this paragraph is "condition, not a disability."  

7.  The appropriate SPD code is "JFV" and the corresponding RE code associated with this type of discharge is an RE code of "3."  Therefore, he received the appropriate RE code associated with his discharge and he is not entitled to the requested relief.
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)                                         AR20090000724



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ABCMR Record of Proceedings (cont)                                         AR20120020139



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