BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160000652 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160000652 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160000652 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 an upgrade of his discharge to honorable in lieu of uncharacterized service with a reentry eligibility (RE) code of 1A. 2. The applicant states: a. He was separated from the Army because of his age. In 2012 during the drawdown, the Army's policy was that you had to be commissioned before your 30th birthday. He was under contract at the time, but he had not made it to officer candidate school (OCS) when he reached age 30. He was assigned to the 30th Adjutant General Battalion when he was issued an uncharacterized discharge. He completed 1 month and 24 days of active service. b. Prior to serving in the Regular Army, he served honorably in the U.S. Marine Corps (USMC) as an intelligence analyst from 2006 to 2010. His records shows he was meritoriously promoted and his proficiency and conduct ratings were excellent. He also received a Navy Achievement Medal along with the Marine Corps Good Conduct Medal during this period of enlistment. c. In February 2010, he was honorably discharged from the USMC and he was accepted in the Army OCS. Through no fault of his own, he was discharged from the Army. He did not complete 90 days of service and he received an unfavorable discharge with an RE code that has barred him from reentry into the Armed Services. d. He is fervently requesting amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his character of service as honorable with an RE code of 1A. Since 2012, he has continuously attempted to serve his country; however, his current discharge from the Army has been met with stiff resistance. This has also spilled over into his professional career. His Top Secret security clearance has lapsed and he has to defend his actions repeatedly due to having an uncharacterized discharge. e. He is currently a law enforcement officer and has continued to live a life of honor, courage, and commitment. He is asking for this change so can continue to serve his county as a Reserve commissioned officer. f. He is also requesting this change because his last period of service is affecting his Department of Veterans Affairs (VA) benefits. He served honorably as an enlisted Marine for 4 years, but because of something that was out of his control (his age), he is now being told his VA benefits are under review. His last DD Form 214 was from the Army; therefore, he is being told that his prior DD Form 214 is considered secondary. He is still able to participate in the VA loan (benefit program), but he has yet to be allowed to return to the VA hospital. A change of his DD Form 214 will affect this as well. 3. The applicant provides no additional evidence. 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. Having prior service in the USMC, the applicant enlisted in the Regular Army on 4 October 2012. He was 29 years old at the time of entry. 3. On 15 October 2012 while assigned to the 30th Adjutant General Battalion (Reception), he was counseled for refusing to train or ship to a training unit. When asked why he refused to train, the applicant stated he was "not all there" and he wanted to go to the Community Mental Health Services (CMHS). 4. He was sent to CMHS and he was seen by J____ A. L____, a licensed clinical social worker. She recommended the applicant's separation for the convenience of the government. 5. On 17 October 2012, the applicant was counseled/advised that he had been declared unfit for duty. He was counseled concerning his conduct and advised that discharge action might be initiated against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17. He was also command-directed for a behavioral health evaluation. 6. A Report of Mental Status Evaluation completed on that same date by a behavioral health provider shows the applicant was found unfit for duty due to a personality disorder or other mental condition that did not amount to a medical disability. Furthermore, the examination showed no obvious impairments, cooperative behavior, normal perception, was unlikely to be impulsive, and was not dangerous. It also showed: a. The applicant could understand and participate in administrative proceedings. He could appreciate the difference between right and wrong. He met medical retention requirements. b. He was diagnosed with Axis I (psychiatric conditions): adjustment disorder with mixed anxiety and depression. c. There is no indication of, or reference to, a diagnosis of post-traumatic stress disorder or mild traumatic brain injury. The applicant met the psychiatric criteria for expeditious administrative separation. d. He attributed the following problems to poor adjustment to the military and reported experiencing the following emotional symptoms to the clinical staff. These problems effectively negated his ability to perform his duties. The applicant stated he: * felt despair and lost * could not concentrate * had no motivation or satisfaction for the future * had sleep and appetite disruption * felt worried and detached from his body * felt unreal and uptight * had racing thoughts and difficulty concentrating * feared he would lose control 7. On 2 November 2012, the commander notified the applicant that he was initiating action to separate him under the provisions of AR 635-200, paragraph 5-17, for other designated physical or mental conditions. The specific reasons for the action were adjustment disorder with mixed anxiety and depression. 8. The applicant was advised of his rights and the separation procedures involved. The commander also informed him that he was recommending characterization of his service as honorable. 9. The applicant acknowledged receipt of the separation action. He waived his right to consult with legal counsel and representation by military or civilian counsel. He acknowledged that he was advised of the rights available to him. a. He was advised that he may expect to encounter substantial prejudice in civilian life in the event a general discharge were issued to him. b. He acknowledged he understood that if he received a discharge/character of service that was less than honorable, he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his discharge. However, an act of consideration by either board did not imply that his discharge would be upgraded. c. He indicated he would not submit statements in his own behalf. d. The applicant authenticated this document with his signature. 10. His chain of command recommended approval of the applicant's separation with an honorable character of service. 11. On 19 November 2012, the separation authority approved the recommendation for discharge with uncharacterized service and directed he not be transferred to the U.S. Army Reserve Individual Ready Reserve. 12. The applicant's DD Form 214 shows he was discharged on 27 November 2012 under the provisions of AR 635-200, paragraph 5-17. He completed 1 month and 24 days of net active service during this period. This DD Form 214 also shows in: * item 24 (Character or Service) – Uncharacterized * item 26 (Separation Code) – JFV * item 27 (Reentry Code) – 3 * item 28 (Narrative Reason for Separation) – Condition, Not a Disability 13. On 1 May 2013, the ADRB determined his discharge was both proper and equitable and denied his request for an upgrade to honorable. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-17 states commanders who are special court-martial convening authorities may approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment 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 are sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-9 (Uncharacterized Separations), states a separation will be described as an entry-level separation with service uncharacterized if processing is initiated while a Soldier is in entry-level status except when characterization of under other than honorable conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that an honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. 2. AR 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active service, and the SPD codes to be entered on the DD Form 214. It states SPD code JFV is the correct code for Soldiers separating under the provisions of AR 635-200, paragraph 5-17, and "condition, not a disability" is the corresponding entry for the narrative reason for separation. The SPD/RE Code Cross Reference Table stipulates that RE code3 will be assigned to members separated under with an SPD code of JFV. 3. AR 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 shows the RE codes and states 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 unless a waiver is granted. DISCUSSION: 1. The evidence of record confirms the applicant was diagnosed with adjustment disorder with mixed anxiety and depression that interfered with the performance of his military duties. Accordingly, his immediate commander initiated separation action against him within 180 days of his entry on active duty. 2. Service is uncharacterized if processing is initiated while a Soldier is in an entry-level status unless the Soldier is being separated under other than honorable conditions or when the Secretary of the Army determines an honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. 3. His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for his discharge were appropriate considering all the facts of the case. 4. The applicant's RE code was assigned based on his separation under the provisions of AR 635-200, paragraph 5-17, by reason of a condition not amounting to a disability. An RE code of 3 is the correct code for Soldiers being separated by reason of a condition, not a disability. The appropriate RE code is recorded on his DD Form 214. 5. The available records do not contain any evidence and the applicant has not provided any evidence to corroborate his contention that he was discharged because of his age. The available evidence shows the applicant did not or could not adjust to military life as evidenced by his counseling and his refusal to train. Accordingly, his chain of command initiated separation action against him. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000652 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000652 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2