IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150004186 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 (RE) code of 3 to a more favorable RE code so he may reenter the military. 2. The applicant states: a. He was stationed in Vicenza, Italy training to deploy to Afghanistan when he received a call informing him that his now ex-wife had a miscarriage and was on suicide watch. b. His commander said he wanted to take care of him; however, there was no medical evaluation board (MEB) and after going over the discharge papers, he was told he could rejoin the Army if he could not find employment within six months of his discharge. c. The process took so long that by the time he returned home in February 2010, he found himself getting a divorce. He has remarried and has a wonderful spouse and three children who fully support his decision to rejoin the Army. d. He feels his discharge was unjust and in error because the physicians at the Vicenza Hospital determined he had a depressed mood and hard time adjusting. This is now preventing him from reenlisting. He is willing to go to a physician to be evaluated and prove he was never in such a condition. He further states he would like to go into the Special Forces and he has the full support of his family. 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. The applicant enlisted in the Regular Army (RA) on 11 March 2009. He completed training and he was awarded military occupational specialty 11B (Infantryman). 3. His record contains: a. AE Form 40-6A-R (Unit Commanders Request for Mental Health Evaluation), undated, which states the applicant arrived in Europe on 3 August 2009, and began seeing behavioral health professionals due to adjustment issues with his unit and family problems. It was further noted that the applicant had difficulty following instructions, had poor interaction with other Soldiers, and he communicated poorly with supervisors. b. A memorandum, issued by a clinical psychologist, U.S. Army Health Center – Vicenza, dated 16 December 2009, regarding a recommendation for administrative separation in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 5, paragraph 5-17, for other designated physical or mental conditions. The psychologist noted the applicant had been seen by multiple providers who all agreed on his diagnosis and recommendation for separation. c. DA Form 4856 (Developmental Counseling Form), dated 23 December 2009, in which the applicant was counseled because he volunteered to be separated from the Army in accordance with chapter 5, paragraph 5-17, Army Regulation 635-200. d. DA Form 3822-R (Report of Mental Status Evaluation), dated 28 December 2009, in which the applicant received a command directed evaluation by a clinical psychologist at the U.S. Army Health Center – Vicenza. The psychologist noted the applicant met the diagnostic criteria for adjustment disorder with depressed mood which was of such severity to warrant administrative separation. 4. On 22 January 2010, the applicant's commander notified him he was initiating action to separate him from the Army with an honorable discharge under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, for a personality disorder. 5. On 25 January 2010, the applicant was advised of his rights and the impact of the discharge. He was advised by consulting legal counsel of the basis of the contemplated actions to separate him under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, and its effect on the rights available to him and the effect of any action taken by him in waving any of his rights. 6. On 25 January 2010, the applicant's commander recommended that the applicant be separated under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17. 7. On 26 January 2010, the separation authority approved the separation action and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, (Other Designated Physical or Mental Conditions) with the issuance of an honorable discharge. 8. On 5 February 2010, the applicant was discharged accordingly. He had completed 10 months and 25 days of active military service. 9. Army Regulation 635-200, chapter 5, paragraph 5-17 states commanders who are special court-martial convening authorities may approve separation 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, sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 10. Army Regulation 601-210 (Regular Army 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 included a list of the RA RE codes. * An RE code of 1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army if all other criteria are met; * An RE code of 3 applies to Soldiers who are not considered fully qualified for reentry or continue service at time of separation, but the disqualification is waivable, ineligible unless a waiver is granted 11. 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 the SPD of "JFV" as the appropriate code to assign enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, based on a condition, not a disability. 12. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established an RE code of 3 as the proper RE code to assign Soldiers separated with an SPD code of "JFV." DISCUSSION AND CONCLUSIONS: 1. The applicant's record confirms he was separated under the provisions of chapter 5, paragraph 5-17, Army Regulation 635-200 by reason of a condition, not a disability. It further shows that based on this authority and reason for separation he was appropriately assigned an SPD 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. 2. An RE code of 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. 3. Notwithstanding the applicant's sincerity, there is no evidence that the applicant's discharge documents are incorrect or that he was told he could enter Army after 6 months. 4. The applicant is advised that although no change is being recommended to his RE code, this does not mean that he is disqualified from reentering the military. If the applicant still desires to enter the Army, he should contact a local recruiter who can best advise a former service member as to the needs and requirements of the Army and process a waiver if appropriate. 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) AR20150004186 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004186 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1