IN THE CASE OF:	  

		BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140000999 


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 that his reentry eligibility (RE) code be changed from RE-3 to RE-1 in order to reenter the military.

2.  The applicant states:

	a.  He was erroneously given an RE code of 3 because it assumes that his condition is indefinite and permanent.  Such a disturbance in his psyche has been eradicated and he is physically and mentally capable of military service.  

	b.  Such a temporary diagnosis should have no bearing on his future intentions to serve in uniform again.  

	c.  During his service at Fort Riley, KS, he was continuously derided and ridiculed by peers and superiors alike for his religious faith.  Such treatment amounted to him being separated from his unit and ordered to report elsewhere on base while his peers were training for war.  

	d.  In fact, said ridicule continued on social media even after his separation.  It should also be noted that when his unit's sergeant major found out about such treatment, he apologized to him personally.    

	e.  As the only private in the regiment who was taking college classes on his own and as the only private in his platoon who possessed an expert marksman badge, he was still not allowed on the line with his peers.

	f.  His unit's commanding officer and first sergeant tried their hardest to have him discharged under other than honorable conditions solely out of spite but the legal office ordered otherwise.  

	g.  He was instructed by his commanding officer on what to write and where to sign in order to be separated from the U.S. Army.

	h.  He believes that the hasty manner in which his separation was wrought was unethical and shrewd and that only contributed to the erroneous RE code given.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 2697 (Report of Medical Assessment), and an Honorable Discharge Certificate.  

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 19 June 2008.  

3.  A Developmental Counseling Form shows that on 1 December 2009, the applicant was counseled after he was evaluated by the Community Mental Health Service and diagnosed as suffering from adjustment disorder with depressed mood.  It was assessed that his state of emotional and/or behavioral dysfunction was of such severity that his ability to perform military duties was significantly impaired.  

4.  On an unspecified date, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other designated physical or mental conditions).  The immediate commander cited as the specific reason for the proposed separation the applicant's diagnosis of adjustment disorder with depressed mood.  

5.  The applicant was advised by legal counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17 and its effects, of the rights available to him, and of the effect of any action taken by him in waiving his rights.

6.  The appropriate authority approved the separation and on 23 December 2009, he was discharged accordingly.  His Form 214 shows in:

* block 26 (Separation Code) the entry "JFV"
* block 27 (Reentry Code) the entry "3"
* block 28 (Narrative Reason for Separation) the entry "Condition, Not a Disability"

7.  He provides a DA Form 2697, dated 3 December 2009, which indicates he was diagnosed as suffering from depression.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performances of duty.  Such conditions may include, but are not limited to, disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army 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.  This chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  

   a.  RE-3 applies to persons not qualified for continued Army service at the time of discharge, but the disqualification is waivable.

	b.  RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, so long as all other qualifications are met.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities and the reasons for the separation of members from active military service and the SPD codes to be used.  The regulation shows that the SPD code of JFV as shown on the applicant's DD Form 214 is appropriate for involuntary discharge when the narrative reason for discharge is condition, not a disability and the authority for discharge is Army Regulation 
635-200, paragraph 5-17.

11.  The SPD Code/RE Code Cross Reference Table states that when the SPD code is JFV then an RE code of 3 will be assigned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code was erroneously assigned and that it should be changed so that he may reenter the military.

2.  Evidence shows he was properly separated under the provisions of Army Regulation 635-200, paragraph 5-17 by reason of a condition, not a disability. Based on the authority and reason for separation, he was properly assigned an SPD code of JFV and a corresponding RE code of 3 in accordance with the applicable regulations.  Therefore, without evidence showing that an error exists on his DD Form 214 or that his discharge was in error or unjust, there is no basis to grant the relief requested.

3.  The applicant is advised that although no change is being recommended regarding his RE code, this does not mean that he is permanently disqualified from reentering military service.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of disqualification.  Therefore, if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process RE code waivers.

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)                                         AR20140000999



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ABCMR Record of Proceedings (cont)                                         AR20140000999



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