IN THE CASE OF:	  

		BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140007304 


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) to upgrade his Separation Program Designator (SPD) Code of "JMJ" and his Reenlistment Code (RE) of "RE-3."

2.  The applicant states he believes that at the time of his discharge he had a mental health issue that was not addressed and directly contributed to the course of action leading to his separation.

3.  The applicant provides his DD Form 214 and a 7-page self-authored statement.

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 initially enlisted in the regular Army on 10 June 1980, held military occupational specialty 76W (Petroleum Supply Specialist), and attained the rank/grade of private (PV2)/E-2.  He was assigned to Fort Polk, LA.

3.  His records show he was frequently counseled by his chain of command for various infractions, inlcuding:

* disobeying orders
* failure to report to duty/formation/inspection (on time/at all)
* failure to shave
* civil arrest for stealing hubcaps
* insubordination
* quitting guard duty/leaving duty without permission and failing to properly secure his assigned weapon
* having a poor attitude

4.  On 17 February 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to report to guard duty on time on 2 February 1981 and 4 February 1981.

5.  His record contains a Report of Mental Status Evaluation dated 17 April 1981 which shows he received a psychiatric examination/evaluation.  This evaluation shows: 

* his behavior was normal, he was fully alert and oriented, and his mood was level 
* his thinking process was clear, his thought content normal, and his memory good
* he did not have any significant mental illnesses; he was mentally responsible and able to distinguish right from wrong and adhere to the right
* he had the mental capacity to understand and participate in board proceedings 
* he met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3
* he was not issued a medical diagnosis and he was psychiatrically cleared for administrative action deemed appropriate buy his chain of command

6.  His record contains a Standard Form (SF) 93 (Report of Medical History), an SF 88 (Report of Medical Examination), and a Report of Mental Status Evaluation, dated 7 July 1981.  The SFs show he was medically fit for retention.  The Report of Mental Status Evaluation shows the applicant received a psychiatric examination/evaluation with the same results as the evaluation he received on 17 April 1981.  

7.  On 17 August 1981, he accepted NJP under the provisions of Article 15 of the UCMJ for being derelict in the performance of his duties by failing to secure his personal weapon (M-16 rifle)

8.  On 1 December 1981, his unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for unsuitability due to apathy.  The unit commander also informed the applicant that he could receive a general discharge and be issued a General Discharge Certificate.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing.  

9.  On 3 December 1981, he acknowledged receipt of the notification of separation action, and after having been advised by consulting counsel, he acknowledged the fact that he had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to him.  He was also informed that if he was issued a general, under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.

10.  His record contains a third Report of Mental Status Evaluation, dated 7 December 1981, which shows he received a psychiatric examination/evaluation with the same results as the evaluations he received on 17 April and 7 July 1981.

11.  On 9 December 1981, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 13-4c, for unsuitability due to apathy, and directed the issuance of a General (Under Honorable Conditions) Discharge Certificate.

12.  His record contains a fourth Report of Mental Status Evaluation and an SF 88 and SF 93, dated 17 December 1981.  The SFs show he was medically qualified for separation and the mental status evaluation shows the applicant received a psychiatric examination/evaluation with the same results as the evaluations he received on 17 April 1981, 7 July 1981, and 7 December 1981.  

13.  On 31 December 1981, the applicant was discharged with an under honorable conditions (general) character of service under the provisions of Army Regulation 635-200, paragraph 13-4c, for unsuitability due to apathy or defective attitudes.  His DD Form 214 shows he was assigned the SPD code of "JMJ" and an RE code of "RE-3." 

14.  There is no evidence he applied to the Army Discharge Review Board for a review of his discharge within its 15-year statute of limitations.

15.  He provides a self-authored statement wherein he stated, in effect:

* his platoon sergeant (SGT) treated him unfairly and did not like him; he tried to talk to his commander about his platoon SGT but he would not help
* he begged to stay in the Army but nobody would help him
* his father and brother were disappointed in him, his friends made fun of him, and his son's mother left him and took their son
* he cannot get a good job and has often been homeless; he has also had numerous failed romantic relationships resulting in children 
* he has been in and out of jail, and on drugs but he found God and is drug free; he has no self-esteem and is very depressed 
* since he was separated from the Army his life has gone downhill and his spirit has been broken

16.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts).  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

17.  Army Regulation 635-5-1 (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 that the SPD code "JMJ" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 13-4c, by reason of unsuitability due to apathy, defective attitude or inability to expend effort constructively.  

18.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "JMJ" has a corresponding RE code of "3."

19.  Army Regulation 635-200 states, in part, 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 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

* An 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
* 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 
* An RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE and SPD codes should be upgraded because he was suffering from mental health issues which were not addressed and directly contributed to his separation.

2.  His record contains four mental health evaluations which are void of any evidence showing he suffered from mental health issues at the time of his separation.  His multiple reports of mental status evaluation do not reflect a mental or behavioral health issue.  In each case, he was cleared for administrative actions. 

3.  The evidence of record shows that the SPD Code "JMJ" was the correct SPD code assigned to an enlisted Soldier separated under the provisions of Army Regulation 635-200, paragraph 13-4c.  As a result, the SPD code assigned was and remains valid.  In addition, the RE-3 code he received was appropriately assigned based on the authority and reason for his separation.  As a result, the RE-3 code assigned was and remains valid.  Therefore, the applicant is not entitled to correction of his records.

4.  The applicant has not provided sufficient evidence to support his contention that the assigned SPD and RE codes are in error.  Therefore, 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)                                         AR20140007304





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ABCMR Record of Proceedings (cont)                                         AR20140007304



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