IN THE CASE OF:	  

		BOARD DATE:	  18 June 2014

		DOCKET NUMBER:  AR20130017951 


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 reentry eligibility (RE) code from RE-3 to a more favorable RE code.

2.  The applicant states he tried to reenlist but his RE and separation program designator (SPD) codes are preventing him from doing so.  He contends that while attending his basic combat training (BCT) he was given a behavioral health evaluation and cleared to return to training.  However, he was not allowed to return to BCT.  He was kept in the barracks for two weeks and then sent home.  His chain of command took advantage of his ignorance of the military and lack of access to counseling in order to get rid of him.  Further, they failed to follow the procedures outline in Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) which require:

* a recommendation for separation be supported by documentation
* confirming the existence of the physical or mental condition
* the Soldier be formally counseled concerning deficiencies and be afforded ample opportunity to overcome those deficiencies as reflected
*  in appropriate counseling or personnel records before separation processing may be initiated

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a Psychological Evaluation, dated 4 February 2011.



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 10 May 2007.

3.  The specific facts and circumstances surrounding the applicant's discharge processing are not available for review.  However, his DD Form 214 shows:

* he was discharged on 17 July 2007 under the provisions of Army Regulation 635-200, paragraph 5-17 for a condition-not a disability with an uncharacterized characterization of service
* he completed 2 months and 8 days of creditable active service
* Item 26 (Separation Code) the entry "JFV"
* item 27 (RE Code) the entry "3"

4.  His service medical records are not available for review but he submits a psychological evaluation wherein the psychologist stated "There was concern that [the applicant] was unstable during his basic training and became homicidal.  There was no indication of any ‘homicidally’ or a risk of becoming homicidal at this point in time."  The applicant was diagnosed as having a Narcissistic Personality, with a proclivity toward anger exhibited primarily by emotional outbursts versus an aggressive or physical act.  Further, his condition was not permanent and he could benefit from military life.  Individual psychotherapy could allow him to work on his coping skills and interpersonal skills.

5.  Army Regulation 635-200, paragraph 5-17 states that 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.  Members separated under this provision of the regulation will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.
6.  Army Regulation 635-200 states 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.  Army Regulation 601-210 (Regular Army and Army Reserve 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 included a list of the Regular Army RE codes.  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.  They are ineligible unless a waiver is granted.

7.  Army Regulation 635-5-1 (Separation Program Designator Codes) the "JFV" SPD code is the correct code for Soldiers separating under chapter 5-17 of Army Regulation 635-200.

8.  The SPD/RE Code Cross Reference Table, dated 31 March 2006, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD/RE code and a corresponding SPD/RE code.  The SPD code of "JFV" has a corresponding RE code of "3."

9.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability under Army Regulation 635-40 that interferes with assignment to or performance of duty.  The regulation requires that the condition interferes with the Soldiers' ability to perform duty and requires that the diagnosis be so severe that the Soldier's ability to function in the military environment is significantly impaired. 

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  His contentions have been considered.  However, there is no evidence in the available record, nor has he submitted any evidence, showing that he received a favorable mental health evaluation during BCT, was later prevented from returning to training, and his chain of command failed to follow proper discharge procedures.

2.  Army Regulation 635-200, paragraph 5-17, specifically provides that Soldiers may be separated under this provision on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  His psychological evaluation shows he has a narcissistic personality which may have been a contributing factor in his discharge, but without his service medical records or separation packet, the circumstances which led to his discharge cannot be determined.  Absent any evidence of error or injustice in the discharge process, the assigned RE and SPD codes are proper and equitable based on the authority and reason for discharge.

3.  In view of the foregoing, his request should be denied.

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)                                         AR20130017851





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ABCMR Record of Proceedings (cont)                                         AR20130017951



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