IN THE CASE OF:  

		BOARD DATE:  17 March 2015

		DOCKET NUMBER:  AR20140014062


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, in effect, 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 he would like to complete his contractual obligation of
3 years.  Wanting to leave the Army before he completed his service obligation was a mistake and he wants to correct his mistake.  

3.  The applicant provides an article from the Military Law Task Force of the National Lawyers Guild, titled "Discharge Upgrading and Discharge Review."

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 15 May 2003.  He completed his initial entry training and was awarded military occupational specialty 11B (Infantryman).  

3.  On or about 1 October 2003, upon completion of his initial entry training, he began a period of overseas service in the Republic of Korea, during which time he was assigned to various units under the command of the 2nd Infantry Division.

4.  His record contains the following DA Forms 4856 (Developmental Counseling Form) that show he was counseled on:

* 17 August 2004, for behavior patterns that could result in separation
* 24 September 2004, for his chain of command's recommendation that he be separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5, paragraph 5-17
* 4 November 2004, for missing formation and misconduct

5.  During the period 21-23 September 2004, he underwent a mental status evaluation at the 121st General Hospital, Republic of Korea.  

	a.  The results of his mental status were recorded on a Medical Command (MEDCOM) Form 699-R (Mental Status Evaluation) and signed by the Chief, Inpatient Psychiatric Service.  

* the applicant's behavior was normal
* he was fully alert and oriented
* his mood or affect was depressed
* his thinking process and thought content were clear and normal
* his memory was good

	b.  The examining psychiatrist diagnosed him with adjustment disorder with mixed disturbance of emotions and conduct.  

* patients with an adjustment disorder and a depressive disorder as demonstrated may experience intermittent suicidal urges and loss of emotional control
* this type of patient may deteriorate along two lines:  affective instability and impulsive-aggressive behavior towards self, others, or property 



	c.  The condition and problems presented by the applicant were determined not to be amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.  It was considered unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.

	d.  The applicant had no potential to meet mobilization requirements, clearly had no potential for useful service under conditions of full mobilization, and discharge from the Army in accordance with Army Regulation 635-200, paragraph 5-17 was in the best interests of both the applicant and the Army.  

	e.  Further retention of the applicant would likely create additional management problems for his commander.  He was recommended for administrative discharge.  Lastly, it was noted that he should not have access to weapons and his barracks room should undergo a Health and Welfare inspection to remove any hazardous materials such as pills, knives, or other weapons.

6.  On or before 22 October 2004, 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, 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 mixed disturbance of emotions and conduct.  He recommended the applicant receive an honorable discharge.  On this same date, the applicant acknowledged receipt of the separation notification memorandum.  

7.  On 2 November 2004, the applicant consulted with counsel regarding his separation under the provisions of Army Regulation 635-200, paragraph 5-17.  He requested representation by counsel but he declined to submit statements on his own behalf.  

8.  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 conditions.

9.  On 21 November 2004, 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, and directed the applicant's service be characterized as honorable.  


10.  On 1 December 2004, the applicant was honorably discharged from the Army under the provisions of Army Regulation 635-200, paragraph 5-17.  The DD Form 214 he was issued shows he was credited with the completion of         1 year, 6 months, and 17 days of net active service during this period of active duty.  Additionally, it shows the following entries in:

* Item 26 (Separation Code), he was assigned the separation code of "JFV"
* Item 27 (Reentry Code), he was assigned the RE code of "3"
* Item 28 (Narrative Reason for Separation), he was separated for a "Physical condition, not a disability" 

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 the RE code of "3" as the proper RE code to assign to enlisted Soldiers separated with the SPD code of "JFV."

DISCUSSION AND CONCLUSIONS:

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

2.  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 separation he was appropriately assigned the separation code of "JFV" in accordance with the applicable regulation.  He was assigned a corresponding RE code of "3."  His assigned RE code was, and remains, valid.

3.  The applicant has provided no evidence that shows the RE code issued to him at the time of discharge was improper, or inequitable, or should be changed now.  The applicant's separation code of "JFV" is consistent with his reason for separation and the RE code of "3" is consistent with the separation code; therefore, the applicant is not entitled to an upgrade of his RE code.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130006320



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ABCMR Record of Proceedings (cont)                                         AR20140014062



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