IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130010064 


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 of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 April 2006 to show his reentry (RE) code as 1 vice 3 
* in effect, the removal of all documents related to his 12 April 2006 discharge from his Army Military Human Resource Record (AMHRR) 

2.  The applicant states:

	a.  His discharge was conducted in a manner through which fellow Soldiers were coerced into writing similar statements and a psychologist's report that stated (he had) a better mental state never appeared in the discharge paperwork.  There was a lack of effort by legal counsel to assist him.  He wishes to return to the U.S. Army.  He is a proven and capable leader.  He has documentation that shows his alleged mental status was inaccurate and misleading in order for him to be discharged.

	b.  When he got to his unit there were problems with his leadership.  Captain (CPT) JFP appeared to be very controlling and not fond of anyone saying no to him or in taking suggestions for a better course of action.  CPT AC was easy-going and understood he was learning something new in a new environment.  Staff Sergeant (SSG) JZ seemed submissive to CPT JFP and rather introverted.  When he learned they were going to deploy soon, he tried to learn everything he could from SSG JZ.
	c.  During this time he was tasked with updating the battalion security roster.  When he completed the task CPT JFP gave him another assignment and CPT AC said he did an incredible job.  They deployed to Afghanistan which was a new situation for him.  It was there that he found out he was low man on the totem pole.

	d.  A few months later, he was told by CPT JFP that his father was ill with cancer and he needed to go on emergency leave.  Prior to his flight home, SSG JZ asked him how he was doing and he said he was fine as he had always been taught to be strong emotionally.  He was still in shock and kept his emotions in control.

	e.  When he returned to the unit, he was placed on the 12-hour night shift with no real section leadership.  During this time, he and CPT JFP seemed at odds.  On one occasion they were on a mission along the Pakistan border and the lock on the door of his vehicle broke.  They were rounding a curve and he almost fell out.  CPT JFP started to scream and yell at him that he was a lousy Soldier.  

	f.  After the mission, he continued to do his work; he needed to do so because he was still preoccupied with his family situation.  If his work wasn't in the right font or in the right place, CPT JFP would be livid.  One occasion, he (the applicant) wanted CPT JFP to brief a platoon leader about an area that had recently been hit by an improvised explosive device.  Instead, CPT JFP informed the platoon leader that he (the applicant) was immature and inexperienced.

	g.  After awhile, he was introduced to Sergeant (SGT) AA and was told SGT AA would be training him on his duties.  However, SGT AA was rather immature and became a distraction.  He did tell SGT AA that he wanted to follow in his father's footsteps and go into Special Forces.  SGT AA added stress to his job and intentionally pushed his buttons.  At one point he told him his father didn't matter in the long run.  He (the applicant) was angry and balled his fists but he had control over his emotions.

	h.  He used his work as his personal shield; it was his protector from the realities he was facing.  He had roommates who complained, Soldiers telling him he wasn't as good as them, and leadership that gave up on him from the beginning.  He was losing his father and his work was his denial of this reality.  So he sought CPT JFP's assistance and asked about attending West Point and about a hardship discharge.  SSG JZ eventually asked him if he wanted to see a psychologist for combat stress and he said no.


	i.  In December 2005, he logged onto the computer and found a counseling statement written by SGT AA saying he (the applicant) had post-traumatic stress disorder (PTSD).  It was full of lies; therefore, he talked to CPT JFP about it.  CPT JFP became irate, accused him of being irresponsible and a hazard to those around him.  He was informed to turn in his weapon and computer and he would be escorted by SSG JZ.  He was completely dumbfounded and he became incensed.  He told CPT JFP that he was a liar, the whole situation was bull, and that he was doing something completely wrong.  CPT JFP yelled at him and called him several names.  At that moment, he broke and just sat there defeated.

	j.  He went to see a combat stress doctor and told him he was upset with CPT JFP.  The doctor listened and when he asked the doctor if anything was wrong with him, he was told no.  He returned to work until 8 January 2006 when he was told his father had passed away.  He returned home for the funeral.

	k.  When he returned to Italy after the funeral, he was told he was being processed out of the Army.  He was sent to see a psychologist and they only talked for about 5 minutes.  The psychologist made a phone call and was told CPT JFP wanted him out of Army.  She then said she was recommending his dismissal and the process would start in a few days. 

	l.  His rear detachment commander informed him he was being recommended for a discharge.  He sought legal counsel but he was told he could not fight it and would be eligible to enlist in the Army after 2 years.

	m.  On 12 April 2006, he was sent home, no longer a Soldier.  He started a relationship with a woman he would later marry and moved to Nevada.  In January 2007, he started school at the University of Nevada, Las Vegas, NV.  His major was history with an emphasis in Chinese and Japanese history.

3.  The applicant provides:

* his DD Form 214 for the period ending 12 April 2006
* four statements of support, one undated and three dated between 19 March and 17 November 2012
* eleven pages of medical records, dated16 March 2011
* seventy pages of various documents related to his 12 April 2006 discharge that are filed in his AMHRR




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 27 August 2003 and he held military occupational specialty 96B (Intelligence Analyst).  He was assigned to the 1st Battalion, 508th Infantry Regiment, Italy, on 24 June 2004.  The specific dates he served in Afghanistan with the 508th Infantry Regiment are not known.

3.  Between 2 October and 14 December 2005, he was counseled by various members of his chain of command for acting in an erratic, immature, emotionally driven, un-Soldier like manner toward his duties and noncommissioned officers (NCO), a lack of consistency in his work performance, and failure to display common sense.  

4.  In a Memorandum for Record, dated 15 December 2005, his immediate commander, after taking sworn statements from several NCOs and officers in his unit, requested his (the applicant's) access to all forms of classified and sensitive material be permanently revoked.  The commander stated his recent behavior included, but was not limited to, threatening NCOs and observed mental instability.

5.  On 9 February 2006, the applicant underwent a mental status evaluation at the request of his commander.  The examining psychologist stated the applicant's behavior was hyperactive, he was fully alert and oriented, his mood was anxious, and he was mentally responsible.  The examining physician diagnosed the applicant with a "personality disorder (nonspecific)" and stated he did not have a mental condition amounting to a disability.  He also met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness).  


6.  The examining psychologist also stated the applicant's condition manifested itself by disturbances of emotional control sufficiently severe that his ability to effectively perform his military duties was significantly impaired.  The applicant had expressed his dissatisfaction with military service.  The psychologist recommended the applicant be expeditiously separated under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 5-17, other designated physical or mental conditions.  She further stated the retention of such emotionally and behaviorally disabled Soldiers put them at high risk to continue in behaviors that could require hospitalization or administrative action under the Uniform Code of Military Justice (UCMJ). 

7.  On 10 February 2006, the applicant was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200, paragraph 5-17, other designated physical or mental conditions.  The commander stated the reason for the action was because of the psychiatric evaluation of the applicant and he was recommending he receive an honorable discharge. 

8.  On 10 February 2006, he acknowledged notification of the proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the procedures and rights that were available to him.  He elected not to submit a statement in his own behalf.

9.  On 23 March 2006, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-17.  On 12 April 2006, he was discharged accordingly.

10.  The DD Form 214 he was issued for this period of service shows he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17 by reason of a condition, not a disability.  Item 26 (Separation Code) of this form contains the entry JFV and item 27 (RE Code) contains the entry 3.  He completed 2 years, 7 months, and 16 days of creditable active service during this period of service.

11.  On 1 December 2009, he enlisted in the Nevada Army National Guard (NVARNG).  He was ordered to active duty as a member of the ARNG and he entered active duty on 15 June 2011.



12.  He was honorably released from active duty on 30 September 2011 by reason of completion of required active service to the control of the ARNG.  The DD Form 214 he was issued for this period of service shows he completed 3 months and 16 days of creditable active service during this period of service.

13.  On 14 December 2011, he was honorably released from the ARNG by reason of erroneous enlistment and he was transferred to the U.S. Army Reserve Control Group (Reinforcement).  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was issued for this period of service shows he completed 2 years and 14 days of Reserve service.

14.  The applicant provides a statement of support, dated 19 March 2012, wherein then SSG AZ stated the applicant was just socially awkward and needed a little maturity for him to be the Soldier he was capable of being.  The command gave up on him and CPT JFP "wrote him off."  CPT JFP muscled SSG AZ and another NCO into riding the applicant and basically making him crack.  In three other statements of support, friends of the applicant stated he was a likeable, mature, level-headed, and professional individual whose continued service would be in the best interests of the Army. 

15.  The applicant provides 11 pages of progress notes, dated 16 March 2011, wherein it shows he underwent a mental health assessment on that date at the Department of Veterans Affairs (VA) Mental Health Clinic, Las Vegas, NV, for the purpose of gaining an ARNG security clearance.  The examining psychologist determined he had no physical or mental health problems at that time.

16.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that a Soldier may be separated on the basis of other physical or mental conditions not amounting to disability that interferes 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.

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 codes to be entered on the DD Form 214.  It states the SPD code of JFV is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-17.  The SPD/RE Code Cross Reference Table stipulates that an RE code of 3 will be assigned to members separated under these provisions with an SPD code of JFV.
18.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 shows the RE codes and states in pertinent part:

	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 for enlistment unless a waiver is granted. 

19.  Army Regulation 600-8-104 (AMHRR Management) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the AMHRR.  Chapter 2 governs the composition of the AMHRR and states the AMHRR is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document(s) becomes a permanent part of that file.  The document(s) will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  Table B-1 (Authorized Documents) of this regulation shows that case files for approved separations will be filed in the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was diagnosed with a personality disorder, a condition not amounting to disability that interfered with his ability to perform his military training/duties.  Accordingly, his commander initiated separation action against him.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

2.  He was honorably discharged on 12 April 2006 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a condition, not a disability.  Based on his separation under this provision, he was appropriately assigned an RE code of 3 at the time of discharge.  An RE code of 3 is the correct code for Soldiers separated by reason of a condition, not a disability.




3.  With the respect to the removal of 70 pages of various documents relating to his separation processing from his AMHRR, the Army has an interest in maintaining the accuracy of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created (emphasis added).  

4.  The evidence of record does not show that an error or inaccuracy occurred.  Rather, the evidence of records confirms he was honorably discharged on 12 April 2006 under the provisions of Army Regulation 635-200, paragraph 5-17.  As such, the 70 pages of documents related to his separation processing are properly filed in his AMHRR.

5.  In view of the foregoing, 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)                                         AR20130010064



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ABCMR Record of Proceedings (cont)                                         AR20130010064



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