IN THE CASE OF:	

		BOARD DATE:	    2 January 2014

		DOCKET NUMBER:  AR20130007458 


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 correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show entries of a more favorable nature in:

* item 25 (Separation Authority) which contains the entry "Army Regulation 635-200 (Active Duty Enlisted Administrative Separations),
Paragraph 5-17"
* item 26 (Separation (SPD) Code) which contains the entry "JFV"
* item 27 (Reentry (RE) Code) which contains the entry "3"
* item 28 (Narrative Reason for Separation) which contains the entry "Condition, Not a Disability"

2.  The applicant states the entries in items 25, 26, 27, and 28 of his DD Form 214 should be changed to more favorable entries.  He disagrees with the entries and has been fighting for a change.  If his requested relief is denied, the Army Board for Correction of Military Records (ABCMR) will receive a letter from him every day.  

	a.  When he spoke to a Licensed Clinical Social Worker (LCSW) at Community Mental Health Services (CMHS) he explained the situation regarding his leg and his feelings at seeing his classmates graduate from advanced individual training (AIT) and walk across the stage without him.  He admitted to feeling disconsolate and dejected; however, he had no idea that his admonitions would lead to being separated for a mental condition.  

	b.  His attempts to reenter the military have been unsuccessful.  He spoke with several recruiters and none of them have been willing to start an enlistment packet because of the entries in items 25, 26, 27, and 28 of his DD Form 214.  The CMHS never told him his discharge was for a mental condition.  He believed he was discharged because of his leg and inability to pass the 2-mile run event of the Army Physical Fitness Test (APFT).  However, after speaking with various recruiters who will not enlist him based on this RE code and perceived mental condition he is well aware the CMHS was less than honest about the reasons for his discharge.  

	c.  After the graduation ceremony, he remained in AIT and continued to try to pass the 2-mile run event of the APFT.  He successfully completed Basic Combat Training (BCT), and AIT and a 2-mile run was the only thing that kept him from being assigned to Fort Stewart, GA.  

	d.  He truly wants a chance to reenter military service.  He can run 3 or 4 miles if the Army recruiter wants; in fact he will run as long and as far as the recruiter wants him to run.  He will do the side straddle hop and flutter kicks; he is willing to do whatever it takes.  He is in excellent shape and had graduated as a medical assistant.  

3.  The applicant provided his DD Form 214.

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 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 10 March 2008.  He completed BCT, attended AIT, and held the rank/grade of Private (PV2)/E-2.

3.  His record does not contain any evidence of an APFT failure or a leg injury.


4.  His record contains a Report of Mental Status Evaluation, dated 2 September 2008, which shows he was evaluated by an LCSW who stated the applicant was 
being evaluated because he was being considered for separation due to an adjustment disorder with depressed mood.  

	a.  The LCSW indicated that his behavior was normal, he was fully alert and oriented, his mood/effect was anxious and depressed, his thinking process was clear, his thought content normal, and his memory was good.  She also indicated that he had the mental capacity to understand and participate in the proceedings and he was mentally responsible.  

	b. The LCSW remarked that the applicant had been evaluated in accordance with (IAW) Army Regulation 635-200, paragraph 5-17, for a disorder currently manifesting as a disturbance of perception, thinking, emotional control or behavior sufficiently severe enough to have significantly impaired the applicant's ability to perform military duties.  She stated that the applicant endorsed a wide range of depressive symptoms to include poor sleep, anxiety, poor concentration, and feelings of being overwhelmed.  He presented with depression and anxiety and was unable to function.  She also stated that the applicant was not motivated to train, was very unlikely to be able to withstand the stress of training, and was at high risk for continued emotional/psychiatric problems.  The LCSW advised the applicant's command that if he was retained in the military service continued problems related to excessive use of cadre resources, potential for self harm, unreliability, depression and tearfulness, and poor judgment should be expected. She stated that the applicant was not amenable to rehabilitation while in entry training and his condition did not amount to a disability.

	c.  The LCSW stated that her findings supported administrative action IAW Army Regulation 635-200, paragraph 5-17.  She stated that there were no signs or symptoms consistent with a mental illness or emotional disorder which would require action by a medical board.  She also stated that the applicant was mentally responsible for his behavior, possessed sufficient mental capacity to understand and cooperate intelligently as a respondent in any administrative or judicial proceedings, and he had been psychiatrically cleared for any administrative action.

5.  His record contains a DA Form 4856-E (Developmental Counseling Form), dated:

	a.  2 September 2008, wherein his drill sergeant counseled him on the recommendation of the LCSW he saw at the CMHS.  His drill sergeant informed 
him that due to the recommendation of the LCSW, she was recommending he be separated IAW Army Regulation 635-200, paragraph 5-17 (a disorder currently manifesting disturbance of perception, thinking, or emotional control). 

	b.  5 September 2008, wherein his first sergeant (1SG) initiated a counseling session to inform the applicant he was recommending to the company commander that the applicant be administratively discharged lAW Army Regulation 635-200, paragraph 5-17 (Other Physical or Mental Conditions, Uncharacterized Discharge) as a result of his evaluation at CMHS by the LCSW which indicated a disorder currently manifesting disturbance of perception, thinking, emotional and behavior severe enough to significantly impair his performance of military duties.  

	c.  15 September 2008, wherein his company commander initiated a counseling session to inform the applicant that he was recommending that the applicant be administratively discharged lAW Army Regulation 635-200, paragraph 5-17 (Other Physical or Mental Conditions, Uncharacterized Discharge) because the applicant's evaluation at CMHS by the LCSW indicated a disorder currently manifesting as a disturbance of perception, thinking, emotional and behavior severe enough that the applicant's ability to perform military duties was impaired. 

6.  He and his company commander signed an undated memorandum wherein the applicant acknowledged he had been formally counseled concerning deficiencies IAW Army Regulation 635-200, paragraph 5-17(a)(8).  He acknowledged that he understood he would be given the opportunity to overcome his deficiencies (disturbance of perception, thinking, emotional control or behavior with anxiety and depression).  The applicant also indicated that he would not try to overcome his deficiencies and waived his opportunity to do so.

7.  On 28 September 2008, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, by reason of other designated physical or mental condition.  The immediate commander stated the applicant had been diagnosed with an adjustment disorder with depressed mood.  He recommended an honorable discharge.

8.  On 28 September 2008, the applicant acknowledged receipt of the separation notification memorandum and waived his right to consult 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 waived his right to representation by counsel and indicated he did not wish to submit a statement in his own behalf.

9.  On 30 September 2008, consistent with the chain of command's recommendations, 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.  The applicant was accordingly discharged on 6 October 2008.

10.  His DD Form 214 shows he was honorably discharged on 6 October 2008 after completing 6 months and 27 days of creditable active military service.  This form also shows in:

* item 25 the entry "Army Regulation 635-200, paragraph 5-17"
* item 26 the entry "JFV"
* item 27 the entry "3"
* item 28 the entry "Condition, Not a Disability"  

11.  On 2 November 2012, Army Discharge Review Board denied his request for an upgrade of his narrative reason for separation and determined he had been properly and equitably discharged. 

12.  Army Regulation 635-200, 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 which is sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 provides a list of RE codes.

* RE-1 applies to Soldiers completing their terms of active service who are considered qualified for enlistment if all other criteria are met
* 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
14.  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 SPD code JFV as the appropriate code to assign to enlisted Soldiers who are administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a condition, not a disability.

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

DISCUSSION AND CONCLUSIONS:

The applicant's records confirm he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a physical condition, not a disability.  He was diagnosed with an adjustment disorder by competent military medical authorities.  He was advised of the reason for his discharge in several counseling statements, and he exercised his rights.  Based on the authority and reason for his separation, he was appropriately assigned SPD code JFV in accordance with the applicable regulation.  He was assigned a corresponding 
RE code 3.  His assigned separation authority, SPD code, RE code, and narrative reason for separation were and remain valid.

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)                                         AR20130007458





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ABCMR Record of Proceedings (cont)                                         AR20130007458



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