IN THE CASE OF: BOARD DATE: 17 December 2015 DOCKET NUMBER: AR20150005078 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: The applicant defers his request, statement, and evidence to his counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests: a. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) be voided, he be reinstated on active duty, and he be assigned to officer candidate school (OCS). b. As an alternative, correction of item 27 (Reentry (RE) Code) of the applicant's DD Form 214 to show his RE code as 1 vice 3. 2. Counsel states a. In March 2012, the applicant was scheduled to attend basic combat training (BCT) followed by OCS. However, he never made it to BCT or OCS and was separated from the Army during inprocessing. He was not afforded the procedures to which he was entitled in violation of both Army regulations and the Fifth Amendment of the U.S. Constitution. As a result of these procedural errors, he was wrongly separated from the Army, lost his place in OCS, and was wrongly encumbered with findings in his record that have made reenlistment difficult if not impossible. The applicant desires to appear before the Board on this matter. b. The applicant, a 23 year old lawyer en route to OCS, arrived at Fort Jackson, SC, for inprocessing on 27 February 2012. About 3 days after his arrival to the Reception Station, Captain (CPT) P conducted a “moment of truth (MOT)” briefing to determine if any member of the platoon had any other information to disclose. CPT P asked for “anything that might possibly interfere with training.” The applicant disclosed a childhood medical condition that he had not previously disclosed. It was outside the Military Entrance Processing Station (MEPS) questions; it was a vocal cord condition he had when he was 12 years old that caused him to become hoarse faster that other people but it had not manifested in adulthood. c. CPT P then gave the applicant a card on which he wrote the applicant’s name, number, and the letters “RBH.” At the time, the applicant did not know what RBH stood for. On 1 March 2012, the applicant asked for directions to “RBH” and when he arrived there he learned it was an acronym for the Reception Behavioral Health Center (BHC). Because his vocal cord condition was not a behavioral health issue, he assumed he had been misheard during the “MOT” briefing. d. At the BHC, he was seen by Ms. CA, Master of Social Work (MSW). She asked him why he was there and he answered that he did not know. When she asked him to tell her about himself, he told her he had been home-schooled, gone to college early and graduated at age 17, and that he attended law school and graduated at age 21. Ms. CA wanted to know why a lawyer would go to BCT and he explained that he had been admitted to OCS and BCT was a step in that process. She proceeded to ask him a series of questions from what seemed to be a standard checklist on her clipboard. e. The applicant answered the questions honestly, though he later learned from reviewing her report that she misunderstood some of his answers. For instance, she understood him to say that he built a noose whereas he said he tied a noose knot; something he learned as part of his training in the Boy Scouts. She understood him to say that he began drinking regularly at age 14 whereas he told her his first taste of alcohol had been at age 14. f. Ultimately, Ms. CA decided that a lawyer would not fit in socially in BCT and that she would use her medical authority to have the applicant discharged. He spent the remainder of the meeting attempting to convince her to reconsider. After asking all the questions, she stated “So what are we going to do with you?” and he responded that she should write a report to clear him of whatever reason had brought him to her office. He then said he would “ship to boot camp with platoon 65, go to OCS, and be the best damned officer the Army ever saw” and “I am going to run for President of the U.S. after a long political career.” She asked why people would vote for him and he replied, “Oh that’s easy, because I am [The Applicant], am running for President, and I have a combat pin.” As he said this, he stood up and extended his hand as if to shake hers, in the manner of someone running for political office. g. He spent another 20 minutes trying to convince Ms. CA to change her decision. She stated there was a reason the Army employed social workers and it was up to her to decide who would fit in at boot camp. She further stated that lawyers tended to be narcissistic, a trait that makes good litigators but does not work well in the group dynamic. As her explanation focused on his status as a lawyer, he asked whether he could be a judge advocate general (JAG). She indicated there was no procedural mechanism by which she could move him from BCT to the JAG Corps. However, Ms. CA suggested she could write him a benign diagnosis as a means to an end; he would be removed from BCT and he could apply to the JAG Corps after her report, a local record not part of his official military personnel file (OMPF), was destroyed. h. Ms. CA instructed the applicant to come back the next day to start the paperwork and again promised that the diagnosis she would write would be sufficiently benign to allow him to go back into the Army. On 2 March 2012, he was told to deliver his paperwork to the hospital where the Entrance Physical Standards Board (EPSBD) would start the discharge process. i. The applicant and another Soldier, Specialist (SPC) JS, who was also being discharged waited until they could be counseled on the administrative proceedings. The medical administration SPC told them both that this proceeding would lead to their discharge with no benefits or future obligation on the part of the Army or either of them. The applicant asked if he could appeal the outcome of the EPSBD and SPC JS expressed his desire to stay in the Army. The medical administration SPC indicated the appeal process was slow and many times the recruits were ordered to training and completed training before the appeal process, thus weighing heavily in favor of the Army keeping the recruit. j. Some days later, without ever having met any board members including the psychiatrists that signed the EPSBD form, or having the chance to plead his case, the applicant and SPC JS were separately presented with the EPSBD findings. The back of the form had a section titled “Action by Service Member” with four boxes. They offered the applicant the opportunity to 1) accept the recommendation and be discharged, 2) accept and request to stay in the Army, 3) disagree with the medical evidence, and 4) to disagree because service had aggravated the condition. The form also mentioned a right to counsel which the applicant unsuccessfully attempted to exercise. The applicant informed the staff sergeant (SSG) that he wanted to speak to an attorney. The SSG walked him back to the waiting area and commented that “Fine, he would do it the hard way.” k. The applicant was then escorted to the legal office where he met with an individual that appeared to be a civilian attorney. The attorney asked the applicant why he thought a JAG was necessary, what he thought a lawyer could accomplish, and if he thought the lawyer could write his statement for him. The applicant responded that he wanted help understanding the process and his rights and indicated he did not know he had the right to make a written statement. The applicant also stated that he wanted a hearing to plead his case due to factual errors in the report. The lawyer told him that he had been working with the BHC longer than the applicant had been alive and what they said goes. The applicant also offered to retain civilian counsel at his own expense as the JAG lawyer was unwilling to assist him. The applicant gave names of several Massachusetts (MA) lawyers, including the applicant’s father. l. The applicant was told the Army was going to discharge him and his only option was to write a statement. When the applicant returned to his company, he complained he had not previously told he could write a statement. He was then given 5 minutes to write the statement and was denied more time to do so. He took his statement to his battalion and he found the personnel sergeant with the JAG attorney discussing what to do with the applicant. The personnel sergeant told the applicant the only way to get the statement in front of anybody who could make a difference was to check the box of the form that said he accepted the findings and ask to remain in the Army; the attorney backed up the personnel sergeant. m. The applicant disagreed with the EPSBD findings but was deprived of the opportunity to gather additional medical evidence that was required to proceed, Without time to do so, he was coerced into checking one of the boxes that did not require additional medical evidence. Soldiers discharged pursuant to paragraph 5-11(c)(2) provides that the Soldier, after being counseled and given the opportunity to obtain legal advice, signs a statement requesting to complete the period of service for which enlisted, but the applicant was denied such legal advice. n. The applicant felt he was being “railroaded” and sought the assistance of civilian counsel. After hours, on his cell phone, he called his father Attorney JW to seek help and his father agreed to assist. As the applicant had no access to phones, his father sent several communications by mail. However, not one letter or package Attorney JW sent the applicant was ever delivered to him. Attorney JW then called the JAG office for the 181st Infantry Brigade as he believed that was the JAG office for the applicant’s unit, Company A, 120th Adjutant General (AG) Reception Battalion. o. Having no access to his civilian counsel, the applicant attempted to contact another JAG; however, he was informed that he was not permitted to leave the battalion area and conferring with an attorney would do no good. The applicant’s discharge was approved by his commanders and he was transferred to Company D for out-processing. On 15 March (i.e. 14 March) 2012 , he was discharged. p. The Board is the only body with the authority to rescind a discharge and review the applicant’s claims of constitutional and regulatory violations. The Board has used its authority to revoke a discharge where there has been a denial of due process. See Association (Civilian Technicians versus (v.) United States wherein Puerto Rico Army National Guard (ARNG) personnel not given hearings or due process received a recommendation from the Board to revoke their discharge and correct records. q. The applicant’s discharge is invalid because he was discharged under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-11. Paragraph 5-11 is the wrong provision and is not applicable to psychiatric diagnoses; rather, psychiatric diagnoses are governed by paragraph 5-13, separation because of personality disorders. Ms.CA was not qualified to render an opinion for his separation under paragraph 5-13 as paragraph 5-13(a) stated the diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist and she was neither. Although two psychiatrists signed the EPSBD Proceedings, the applicant was never interviewed by either one. Rather, they apparently based their findings on the report by Ms. CA. r. AR 635-200, paragraph 5-13, requires observed behavior of specific deficiencies should be documented in appropriate counseling or personnel records and include history from sources such as supervisors, peers, and others necessary to establish that the behavior is persistent, interferes with assignment to or performance of duty, and had continued after the Soldier was counseled and afforded an opportunity to overcome the deficiencies s. Since his discharge, the applicant has held a local elected office, pursued an additional degree, built a thriving practice, and practices law with his father. He serves as general counsel to a non-profit corporation dedicated to helping individuals develop the physical fitness required to enter the military. He specialized in representing service member and had developed some experience with the laws governing the U.S. Armed Forces. As a result, he has explored the possibility of serving as a JAG. He has sought to find an ARNG unit with an open JAG slot that would be willing to process a waiver as required with his RE 3 code but has had no success. 3. Counsel provides: * USMEPCOM Form 40-1-15-1-E (Medical History Provider Interview) * DD Form 2807-1 (Report of Medical History) * DD Form 2808 (Report of Medical Examination) * DA Form 4707 (EPSBD Proceedings) * U.S. Army Reserve (USAR) and ARNG Counseling Form * a self-authored statement by the applicant, dated 6 March 2012 * two memoranda, dated 5 and 7 March 2012 * a notarized affidavit by the applicant, dated 25 February 2015 * a notarized affidavit by Attorney JW, dated 6 March 2015 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. On 9 August 2011, in conjunction with the applicant’s enlistment in the USAR he completed: a. USMEPCOM Form 40-1-15-1-E, wherein, in part, he checked the NO blocks of this form to indicate that he had never been depressed or down, most of the day, nearly every day for 2 weeks; he had never deliberately cut, burned or injured himself. and he had never considered or attempted suicide . b. DD Form 2807-1, wherein, in part, he checked the NO blocks of this form to indicate that he never had, and did not have, any depression or excessive worry; he never attempted suicide; he had never been a patient in any type of hospital; and he had never had any illness, or injury, other than those noted. He did check the YES blocks of this form to indicate he was in good health, had mild hay fever treated with Benadryl, and he had been treated in the emergency room (ER) as a child approximately 15 years prior for a concern about a hyper-extended thumb incurred while sledding. The ER doctor had said it was nothing and no treatment was prescribed. 3. On the DD Form 2808, dated 9 August 2011, the examining physician noted the applicant’s clinical evaluation, to include psychiatric, was normal and he was found qualified for service. 4. On 9 November 2011, the applicant enlisted in the USAR in the rank of SPC, for a period of 6 years, assignment to the 401st Chemical Company, Boston, MA, with a report date of 27 February 2012 for BCT at Fort Jackson, SC, and OCS training at Fort Benning, GA. 5. On 27 February 2012, he entered initial active duty for training (IADT) as a member of the USAR and was assigned to Company A, 120th AG Reception Battalion, Fort Jackson. 6. The applicant’s counsel provides and his record contains DA Form 4707, dated 1 March 2012, wherein it shows an EPSBD convened on that date. This form shows after careful consideration of medical records, laboratory findings, and medical examinations, the board found the applicant was medically unfit for enlistment in accordance with medical fitness standards and in the opinion of evaluating physicians the condition existed prior to service (EPTS). This form also shows the examining psychiatrists stated, in part: a. Soldier reported that he cut both of his wrists with a knife at age 17 after he was distressed by an argument with his parents. He reported a history of cutting himself to self-mutilate for 6 months at age 17. At age 18, he built a noose but reported that he lacked the courage to hang himself. b. Soldier is a 23 year old, white, single male, SPC, in the Reception Battalion, who reported feeling anxious and worried with “wild” mood changes, poor concentration, lack of appetite, shortness of breath, and ambivalence about shipping to BCT. He revealed a history of “vocal cord dysfunction since 12 years of age” at the MOT. c. Soldier is alert and oriented with good eye contact and clear speech. He was talkative with an anxious mood, somatic complaints, ambivalence about BCT with a grandiose presentation. His memory is intact and his behavior was immature but cooperative during the interview. He was home-schooled through 8th grade, skipped high school, entered college at 13, and completed his Bachelor of Science degree in government. He started law school at 17, took time off to work, then returned to law school in 2010, passed the MA bar in 2011, and had been doing pro bono work while waiting to enter the Army. d. No history of mental health treatment or legal problems. He reported regular alcohol use from age 14, and enlisted in the Army because he is “going to run for President of the U.S. and wanted a combat pin.” He described himself as an “unemployed basement dweller” in his parent’s home. He reported a history of cutting himself for 6 months at 17 and one suicide attempt by cutting his wrist that same year. He reported that “he did not fit in with people” his own age. He reported having a few friends but preferred to be around older people. No evidence of psychosis. He denied current suicide or homicidal ideations or plans. The Soldier has limited insight and questionable judgment with poor retention potential in the Army. e. He was diagnosed with adjustment disorder, unspecified, and narcissistic personality traits. It was recommended the applicant be separated from the Army for failure to meet medical procurement standards under the provisions of AR 40-501 (Standards of Medical Fitness), paragraph 2-27(j)(p). The condition was EPTS, was not permanently service aggravated, and he did meet medical retention standards under the provisions of AR 40-501, chapter 3. He was given a profile of 3 in the S (Psychiatric) category of the PULHES with assignment limitations to no isolated areas where definitive medical care was not available. The examining physicians, Major (MAJ) CJ, Staff Psychiatrist, and Ms. RN, Clinical Psychiatrist, both signed this form. 7. On 6 March 2012, the applicant signed this form, acknowledged that he had been advised of the EPSBD findings, that he understood that legal advice of an attorney employed by the Army was available to him, that he could consult with civilian counsel at his own expense, and understood he could request to be discharged from the Army without delay or request retention on active duty. He checked the block of the DA Form 4707 that indicated he concurred with the proceedings and requested to be retained on active duty. 8. On 6 March 2012, the applicant’s immediate commander signed this form and recommended the applicant be discharged. 9. The applicant’s counsel provides a USAR and ARNG Counseling Form, dated 6 March 2012, wherein it shows the applicant was counseled on that date by the USAR Recruiting (USAREC) Liaison concerning the separation action pending against him under the provisions of AR 635-200, paragraph 5-11, for failure to meet medical fitness standards. a. The applicant signed this form on that date to show he acknowledged that he had counseled concerning the commander’s recommendation for administration separation from active duty. He acknowledged that he understood if he was discharged he would lose all medical/educational benefits; that he understood the probable discharge type, character and reentry probability with or without a waiver, and that he must report to his Reserve unit after he was released from active duty and concurred with the counseling. b. The counselor circled the block of the form that showed he concurred with the commander’s recommendation. 10. In a self-authored statement, dated 6 March 2012, the applicant stated, in part: a. He was requesting to be retained on active duty to complete BCT. He would be an asset to the Army and devote all his skills to the service of his nation. He had worked very hard to get into the Army and had unsuccessfully interviewed with the Army JAG twice and the U.S. Air Force Reserve JAG. The perseverance led him to 10 months of training physically to get ready for BCT and OCS and it was a dominate character trait that would be an asset to the Army. It was perseverance and hard work that separated successful men. b. It was natural to be anxious in new and different environments such as reception and BCT but it would not affect his performance as a Soldier in a battle zone. He had confidence and was merely cautious; a trait encouraged in leaders to prevent the reckless loss of money and life. His prior mental history had not and does not bother him or affect his wits and judgment. 11. On 7 March 2012, the applicant’s immediate and senior commanders recommended approval of the discharge action. The approving authority subsequently signed the DA Form 4707 approving the findings of the EPSBD Proceedings and the applicant’s discharge action and stated retention was not practical. On 14 March 2012, the applicant was discharged accordingly from active duty and the USAR. 12. The DD Form 214 he was issued shows he was discharged under the provisions of AR 635-200, paragraph 5-11, for failure to meet procurement medical/physical/procurement standards. He completed 18 days of active duty service and received an uncharacterized character of service. His DD Form 214 also shows the following entries in: * item 26 (Separation Code) - JFW * item 27 (RE Code) - 3 13. Counsel provides an affidavit, dated 25 February 2015, wherein the applicant reiterated the statements his counsel made. Counsel also provides an affidavit, dated 6 March 2012, wherein Attorney JW, the applicant’s father stated, in part: a. On 1 March 2012, he received a phone call from the applicant who was distraught. He had apparently met with a social worker and, as a result, the Army was going to discharge him because of a personality disorder. He said he had only a limited time to use the phone, asked for his father’s assistance as an attorney to seek other options or to appeal the discharge action, and stated a board action would determine his fate. Attorney JW told the applicant he could fly there to appear as his attorney, or arrange to hire another attorney, and would send him the Army’s discharge regulations. b. He did a lot of research of Army regulations, found the document that applied, and mailed a copy to the applicant the next day. He tried to call the company the applicant was assigned to but was told he needed to speak to the Staff Judge Advocate (SJA). He spoke with a JAG officer who said he would look into the matter and call him back but he never did. He wrote the applicant another letter summarizing his conversation with the JAG and mailed that letter. c. On 8 March 2012, he called the SJA office again and left a message with the clerk. He sent another letter to the applicant reporting his lack of success. On 9 March 2012, his first letter was sent back to him unopened and sealed. He called the officer of the day at the 120th AG Reception Battalion and was told his son was alive and well and that recruits had limited access to mail. After explaining he had sent other letters, he was told the policy could not be circumvented and the other letters would probably be returned. He was told by the officer the best he could do was relay a message to the applicant’s company and ask that he be allowed to call him. d. On or about 12 March 2012, he was called by his son who stated the discharge was a done deal, that he had not appeared before a board, and a sergeant had shown up with the completed paperwork ordering his discharge. He also stated he had been transferred to Company D while waiting his discharge. The additional letters he had sent were subsequently returned to him. 14. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on active duty, ADT, or IADT will be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time. b. The Soldier, after being counseled and given the opportunity to obtain legal advice, may sign a statement requesting to complete the period of service for which enlisted. Approval or disapproval of requests for retention was delegated to the separation authority. No Soldier had a right to be retained under this paragraph. Solders not retained would be processed for separation. c. The characterization of service for Soldiers separated under this provision of the regulation would be uncharacterized if the Soldier was in an entry-level status. Entry-level status is defined as the first 180 days of continuous active duty. 15. AR 635-200, paragraph 5-13, states a Soldier with less than 24 months of active duty service may be separated for personality disorder (not amounting to disability) that interferes with assignment or with performance of duty. 16. AR 40-501, chapter 2, then in effect prescribed the medical conditions and physical defects that were causes for rejection for appointment, enlistment, and inductions into the Army. Those individuals found medically disqualified may be granted a waiver by designated waiver authorities provided the individual met the retention standards of chapter 3. Paragraph 2-27(j) stated the history of suicidal behavior, including gestures or attempts, or history of self-mutilation, was disqualifying. Paragraph 2-27(p) stated the current or history of other mental disorders that in the opinion of the civilian or military provider will interfere with, or prevent satisfactory performance of military duty, are disqualifying. 17. AR 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 codes to be entered on the DD Form 214. It states the SPD code of JFW is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-11, for failing to meet medical fitness standards. The SPD/RE Code Cross Reference Table stipulates that an RE code of 3 will be assigned to members separated under these provisions with an SPD code of JFW. 18. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 shows the RE codes and states: a. RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. 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 for enlistment or reenlistment unless a waiver is granted. 19. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 20. AR 600-8-104(Army Military Human Resource Records Management) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF. Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Table B-1 (Authorized documents), updated on 7 August 2015, shows that the separation packet is filed in the performance folder of a Soldier's OMPF. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The evidence of record confirms in March 2012 an EPSBD found the applicant medically unfit for enlistment in accordance with medical fitness standards and determined he should be discharged. As he was not discharged because of a diagnosed personality disorder, AR 635-200, paragraph 5-13, did not apply in his case and he was subsequently discharged on 14 March 2012 under the provisions of AR 635-200, paragraph 5-11 for failure to meet medical fitness procurement standards. In the absence of evidence to the contrary, it is presumed what the Army did in his case was correct and his discharge was both proper and equitable. 3. Notwithstanding the applicant’s and his counsel’s contentions, the evidence of record shows that while in the Reception Battalion he self-identified that he felt anxious, was worried with wild mood changes, poor concentration, lack of appetite, shortness of breath, was ambivalent about attending BCT, at age 17 he had slit his wrist, he had a history of cutting himself, and had a vocal cord dysfunction since age 12. In a self-authored statement on 6 March 2012, he stated his anxiety was normal and that his prior mental history had not bothered him or affected his judgment. 4. As this medical information had not been disclosed prior to his enlistment in the USAR and in view of the anxiety he was experiencing while at the Reception battalion, an EPSBD was appropriately convened to determine if he should be retained on active duty. 5. He contends that at the time of his EPSBD he was not allowed to consult with counsel; however, both he and his counsel stated that he was allowed to speak to counsel. It appears he simply did not like the advice he was given. As he was facing an administrative discharge and not a court-martial, he was not entitled to counsel representation when the EPSBD convened, his legal counsel was required to advise him of the discharge procedures and the rights available to him. The applicant has presented insufficient evidence that shows this was not accomplished. The applicant, an educated individual and an attorney himself, should have been able to clearly understand the EPSBD recommendations and the counseling he received from his legal counsel, USAREC counselor, and his immediate commander prior to concurring with and signing the DA Form 4707 and the USAR counseling form. 6. Although the applicant’s father contends he was not able to contact his son, the applicant stated he had a cell phone and that is what he used to contact his father and inform him of the separation action pending against him. It is unclear why his father would have mailed him letters that may not have reached him in a timely manner and not just called the applicant’s cell phone or, if the applicant wanted to stay in touch with his father, why he did not call him prior to his discharge being approved. 7. With respect to his RE code, the applicant was separated under the provisions of AR 635-200, paragraph 5-11, with an SPD code of JFW. Based on his separation action under this provision, he was appropriately assigned an RE code of 3 at the time of his discharge. An RE code of 3 is the correct code for Soldiers separated by reason of failed medical procurement standards misconduct; no other RE code is authorized. 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) AR20150005078 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005078 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1