IN THE CASE OF:	   

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140017371 


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 the separation authority, narrative reason for separation, separation code, and reentry eligibility (RE) code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that he was diagnosed with seizures and attention deficit hyperactivity disorder (ADHD); however, he was not properly tested to determine if the diagnoses were accurate.  The evidence he provides proves that he was improperly discharged because his medical records do not show the medical conditions for which he was discharged.  He is attempting to reenter military service and a change in his discharge will allow him to pursue that effort.

3.  The applicant provides copies of his DD Form 214 and post-service medical records.

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.  A review of the DD Form 2807-1 (Report of Medical History) prepared by the applicant as part of his entrance physical examination, on 7 August 2006, shows he denied ever being a patient in any type of hospital.

3.  On 3 October 2006, the applicant enlisted in the Regular Army (RA) in the rank of private first class/E-3, for a period of 3 years and 22 weeks.  He was awarded military occupational specialty 92F (Petroleum Supply Specialist).

4.  He served in Kuwait and Iraq from 26 May to 9 December 2007.

5.  On 13 May 2008, the commander requested the applicant be medically evaluated for entry into the Warrior Transition Battalion.

6.  On 22 May 2008, Lieutenant Colonel D____ H. L____, Doctor of Psychology, Chief, Inpatient Psychiatry, William Beaumont Army Medical Center (WBAMC), El Paso, TX, provided a report on the applicant's mental status to the applicant's commander.  It shows the evaluations consisted of a clinical interview, medical work-up, substance-use assessment, occupational testing, observation, and psychometric testing.

a. The applicant was diagnosed with –

* Axis I – mood disorder, not otherwise specified (NOS)
* Axis II – None
* Axis III – None

   b.  It shows, in pertinent part, the applicant had been hospitalized at WBAMC impatient psychiatry due to homicidal ideation secondary to recurrent unit conflict.  The applicant related a long-standing history of mood disorder since childhood, including two prior inpatient psychiatric hospitalizations before his entrance on active duty.  The doctor noted the applicant's psychiatric issues were incompatible with continued active duty status as he posed a safety risk to himself and his unit members.  He recommended expeditious discharge under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, (Other designated physical or emotional conditions).



   c.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.

7.  On 21 August 2008, the applicant's commander initiated action to discharge him from the service under the provisions of AR 635-200, chapter 5 (Separation for the Convenience of the Government), paragraph 5-17.  He noted that the applicant had been diagnosed as having a mood disorder.  The applicant was informed of his rights and that the commander was recommending he receive an honorable discharge.

8.  On 26 August 2008, the applicant consulted with counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He requested consulting counsel.

   b.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him.

   c.  The applicant also acknowledged he understood that if he received a discharge/character of service that is less than honorable conditions he may make application to the Army Discharge Review Board (ADRB) or ABCMR for upgrading his discharge.  However, an act of consideration by either board did not imply that his discharge would be upgraded.

   d.  He indicated that statements in his own behalf were not submitted.

   e.  The applicant and his counsel placed their signatures on the document.

9.  The applicant's company commander recommended the applicant be discharged under the provisions of AR 635-200, chapter 5, paragraph 5-17.  The basis for the recommended action was the Report of Mental Status Evaluation in which the applicant was diagnosed with a mood disorder (NOS).  He noted the applicant had been counseled as to the diagnosis of his mental evaluation and the command had given the applicant the opportunity to rehabilitate and overcome his condition.

10.  The separation authority approved the recommendation for discharge of the applicant and directed that he be issued an Honorable Discharge Certificate.



11.  The applicant's DD Form 214 shows he was honorably discharged on 
17 September 2008.  He had completed 1 year, 11 months, and 15 days of net active service during this period.  It also shows in:

* item 25 (Separation Authority):  AR 635-200, paragraph 5-17
* item 26 (Separation Code):  "JFV" (Condition, Not A Disability)
* item 27 (Reentry Code):  "3"
* item 28 (Narrative Reason for Separation):  "Condition, Not A Disability"

12.  In support of his application the applicant provides copies of his post-service medical records spanning the period from 6 January 2014 to 8 September 2014 that show, in pertinent part, on:

* 6 January 2014, he requested a letter that he could provide to the military stating he does not have ADHD
* 16 July 2014, he requested assessment for the absence of seizures
* 22 July 2014, he reported being treated for seizures while in the military, that he now desired to reenlist, and he:

* "reported one hospitalization while in the Army stemming from a communications issue (sergeant overreacted to [applicant's] joking, [applicant] thought sergeant was not serious); [Applicant] reported he was released from the Army under a Chapter 17 ('Other Mental/Physical')"
* was seen for ADHD; "history suggested strong possibility of ADHD as a child"

* 8 August 2014, "Primary Diagnosis Code:  Normal; Impression:  The most likely diagnosis is pseudo seizures"
* 8 September 2014, applicant indicated he was "diagnosed to have seizures in the Army"

13.  AR 635-200 sets forth 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 under AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), when the condition potentially interferes with assignment to or performance of duty.  The conditions 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.  The commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with AR 40-501 (Standards of Medical Fitness).  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

14.  AR 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.

	a.  It identifies SPD code "JFV" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of AR 635-200, paragraph 5-17, based on a condition, not a disability.

	b.  The SPD/RE Code Cross Reference Table stipulates that an RE code of "3" will be assigned to members separated with an SPD code of "JFV."

15.  AR 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.  Table 3-1 includes a list of the RA RE codes and how they are applied:

* RE-1 – Soldier completing his/her term of active service who is considered qualified for reentry or continuous service at time of separation, if all other applicable criteria are met
* RE-2 – Soldier separated prior to 8 March 2011; code will no longer be used (Qualified for enlistment, provided reason and authority does not preclude enlistment or require a waiver
* Applicant may not enlist until 93 days after separation, if otherwise qualified)
* RE-3 – Soldier who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable

16.  AR 635-5 (Separation Documents), in effect act the time, prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  
It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance for preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File.


	b.  Paragraph 2-4 contains item-by-item instructions for completing the DD Form 214.  It shows for:

* item 25, obtain correct entry from regulatory directives authorizing the separation
* item 26, obtain the correct entry from AR 635–5–1, which provides the corresponding SPD code for the regulatory authority and reason for separation
* item 27, AR 601-210 determines reentry eligibility and regulates the assignment of the RE code
* item 28, is based on regulatory or other authority and can be checked against the cross reference in AR 635-5-1

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the separation authority, narrative reason for separation, separation code, and RE code shown on his DD Form 214 should be corrected because he was diagnosed with seizures and ADHD; however, he was not properly tested to determine if the diagnoses were accurate and his medical records prove that he does not have those medical conditions.

2.  The applicant's contentions were carefully considered.

   a.  The evidence of record shows, on 22 May 2008, the applicant was diagnosed with mood disorder (NOS) by the Chief, Inpatient Psychiatry, WBAMC.  At that time, the applicant acknowledged a long-standing history of mood disorder, which he did not disclose at the time of his entry into military service.

   b.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by his command.

   c.  There is no evidence of record that shows the applicant was diagnosed with a seizure disorder or ADHD during the period of service under review.  Moreover, there is no evidence of record that shows he was separated from military service based on any such condition(s).

   d.  The medical records the applicant provides span the period from 6 January to 8 September 2014 and are based on diagnoses made more than six years since the applicant's discharge.  They show, in pertinent part, the applicant sought evaluations for ADHD and the absence of seizures.  As such, they offer insufficient evidence with respect to the conditions for which he was discharged (i.e., mood disorder).
   e.  Thus, there is insufficient evidence to support the contention that the applicant's administrative discharge was improper and that he should not have been discharged based on a condition, not a disability (i.e., mood disorder).

3.  The Army regulation governing the applicant's discharge shows a disorder manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is grounds for separation.  The diagnosis must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials.  The evidence of record shows that such a diagnosis meeting the criteria for administrative separation was made by an Army psychologist in the applicant's case.

4.  The applicant's administrative separation under the provisions of AR 635-200, paragraph 5-17, due to a condition (not a disability) was in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the separation authority, narrative reason for separation, and assigned SPD and RE codes are appropriate and equitable.

5.  The ABCMR does not grant requests for changes to discharges for the purpose of making the applicant eligible for reentry into military service.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140017371



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ABCMR Record of Proceedings (cont)                                         AR20140017371



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