IN THE CASE OF:	   

		BOARD DATE:  30 January 2014

		DOCKET NUMBER:  AR20130010018


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, through his Member of Congress, correction of his reentry eligibility (RE) code from "RE-3" to a more favorable RE code so he may reenter the military.

2.  The applicant states that during his discharge processing he was informed he could reenlist as soon as 6 months after he was separated, provided his medical issues were cleared up and no longer a problem.  Three years have passed since he was separated, and he still has not been able to reenter the Army.  

3.  The applicant provides:

* a letter to his Member of Congress
* copies of his DA Form 4037 (Enlisted Record Brief), dated 11 March and 17 April 2009
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* a memorandum from the Commander, Headquarters, U.S. Army 95th Adjutant General Battalion (Reception), Fort Sill, OK, dated 28 August 2008
* Orders 325-396, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sill, OK on 20 November 2008
* Orders 337-399, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sill, OK on 2 December 2008
* DD Forms 93 (Record of Emergency Data), dated 9 February and 9 April 2009
* SGLV Forms 8286 (Servicemembers' Group Life Insurance Election and Certificate), dated 9 February and 9 April 2009
* DA Forms 4856 (Developmental Counseling Form), dated 3 March 2009 (3 separate forms)
* a memorandum for record from the Commander, Battery B, 2nd Battalion (Airborne), 321st Field Artillery Regiment, 4th Brigade Combat Team (Airborne), 508th Parachute Infantry Regiment, 82nd Airborne Division, dated 3 March 2009, subject: Letter of Intent to Separate…
* a memorandum from the Commander, Battery B, 2nd Battalion (Airborne), 321st Field Artillery Regiment, 4th Brigade Combat Team (Airborne), 508th Parachute Infantry Regiment, 82nd Airborne Division, dated            3 March 2009, subject: Debt Avoidance Notice
* a Statement of Understanding signed by the applicant, date unknown, acknowledging his understanding of his commander's Debt Avoidance Notice
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* a memorandum for his commander, signed by the applicant, dated         17 March 2009, subject: Pre-Separation Counseling on Education Benefits
* his entire discharge packet
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 137-1 (Unit Clearance Record)
* installation clearing documents
* deployment history documents
* various other clearing documents
* numerous Standard Forms (SF) 600 (Health Record – Chronological Record of Medical Care)
* Medical Command (MEDCOM) Form 4038 (Report of Behavioral Health Evaluation), dated 23 February 2009
* MEDCOM Form 4038, dated 3 March 2009
* DD Forms 2697 (Report of Medical Assessment), dated 18 March 2009,   1 April 2009, and 14 April 2009
* DD Forms 2807-1 (Report of Medical History), dated 1 April 2009 and 
30 December 2010
* DD Forms 2808 (Report of Medical Examination), dated 1 April 2009 and 30 December 2010
* DD Form 2807-2 (Medical Prescreen of Medical History Report), dated   16 August 2012
* a letter from a Department of Veterans Affairs (VA) psychologist
* VA progress notes
* 3 separate third-party letters of support/character reference

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 20 August 2008.  He completed his initial entry training at Fort Sill, OK and was awarded military occupational specialty 13B (Cannon Crewmember).  

3.  On or about 12 February 2009, upon the completion of his initial entry training, he was assigned to 2nd Battalion, 321st Field Artillery Regiment, 4th Brigade Combat Team (Airborne), 508th Parachute Infantry Regiment, 82nd Airborne Division, at Fort Bragg, NC.  Almost immediately upon his arrival at Fort Bragg, he was referred for a behavioral health evaluation.

4.  On 23 February 2009, he underwent a behavioral health evaluation by reason of being unfit for duty due to a personality disorder or other mental condition that did not amount to a disability.  The military doctor stated:

* the applicant's behavior was normal; he was fully alert and oriented
* his mood was depressed
* his thought process and content were clear and normal
* his memory was good
* he possessed the mental capacity to understand and participate in any separation proceedings
* he was mentally responsible
* he possessed the potential for self harm, harm to others, or absent without leave (AWOL) service

The examining psychiatrist diagnosed him with adjustment disorder with depressed mood.  He was judged to be psychologically stable and not at a significant risk for dangerous behavior.  He was determined to be psychiatrically cleared for any administrative actions deemed appropriate by his command.

5.  On 20 April 2009, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, by reason of other designated physical and mental conditions.  His immediate commander cited the fact that he was diagnosed with an adjustment disorder with depressed mood.  He recommended the applicant receive an honorable discharge.

6.  On 20 April 2009, the applicant acknowledged receipt of the separation notification memorandum.  He was given the opportunity to consult with counsel; however, he declined.  Additionally, he declined to submit statements on his own behalf.  

7.  On 20 April 2009, subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other designated physical or mental condition.

8.  On 30 April 2009, 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, and directed the applicant receive an honorable discharge.  

9.  On 21 May 2009, the applicant was honorably discharged from the Army under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a "condition, not a disability."  The DD Form 214 he was issued shows he was credited with the completion of 9 months and 2 days of net active service during this period of active duty.  Additionally, it shows the following entries:

* Item 26 (Separation Code) he was assigned the separation code "JFV"
* Item 27 (Reentry Code) he was assigned the RE code "3"

10.  He provides numerous post-service medical documents, including several different Reports of Medical Examination conducted by military doctors and progress notes from VA doctors.  Additionally, he provides several third-party letters of support/character reference.

11.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Paragraph 5-17 provides that commanders, who are special court-martial convening authorities, may approve separation actions 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.

12.  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

13.  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.

14.  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:

1.  The applicant's request for an upgrade of his RE code was carefully considered.

2.  He contends he was informed, during his discharge processing, that he could reenlist as soon as 6 months after his separation, provided his medical issues were cleared up and no longer a problem.  There is no way this Board could refute this contention, as the supposed "verbal counseling" occurred in 2009.  However, the Army's need to enlist or reenlist applicants, with concurrent entry on active duty, is dependent on numerous factors.  His previous or current mental status may or may not have impacted his ability to reenlist and enter active duty.

3.  His record confirms he was separated 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 (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 RE code was, and remains, valid.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  The applicant is advised that although no change is being recommended to his RE code, this does not mean he is disqualified from reentering military service.  An RE code "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)                                         AR20130006320



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ABCMR Record of Proceedings (cont)                                         AR20130010018



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