BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20150014680 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: 15 December 2016 DOCKET NUMBER: AR20150014680 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: 15 December 2016 DOCKET NUMBER: AR20150014680 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 a change of the reentry eligibility (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states, in effect, he was involuntarily discharged based on a condition that is 100 percent curable, commonly by time and without the aid of medication. a. He states that he was educationally and physically qualified for retention in military service, and he had no prior history of a disqualifying medical disorder. However, the examining physician simply wrote down a condition that resulted in his (the applicant's) military service being unjustly terminated. b. He also states he was unsuccessful in attempting to address the matter through his chain of command. He adds that his separation code contradicts his RE code and he would like a second chance to serve in the U.S. Armed Forces. 3. The applicant provides a 3-page medical record, a list of Army RE codes, and a 1-page extract of separation program designator (SPD) codes. 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 17 February 2009 for a period of 3 years and 16 weeks. 3. Post Appointment Instructions, Community Mental Health Services (CMHS), Sand Hill, Adjutant General Reception Station, show the applicant was seen at CMHS on 9, 23, 27, and 29 April 2009. On 29 April 2009, Ms. AH, Licensed Professional Counselor (LPC), recommended the applicant be discharged under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 5 (Separation for the Convenience of the Government), paragraph 5-17, based on a condition that existed prior to service. She also recommended the applicant return to his unit and that he be removed from training with no access to weapons while he was awaiting discharge. 4. A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant was referred by his unit to CMHS because of "incidents involving anger toward the drill sergeants and his peers which have become confrontational." He was evaluated by CMHS and, based on the psychological assessment, he was diagnosed with Axis I: adjustment disorder with disturbance of emotions and conduct. The psychiatrist (MM, Medical Doctor; Chief, Behavioral Health) noted the applicant's "disorder is so severe that his ability to function effectively in the military environment is significantly impaired." He recommended the applicant be administratively discharged UP AR 635-200, paragraph 5-17. 5. On 8 May 2009, the company commander counseled the applicant notifying him of his intent to initiate action to discharge him (the applicant) from the service UP AR 635-200, chapter 5, paragraph 5-17, due to a condition, not a disability, that interferes with assigned military duties. The applicant was informed of his rights and that the separation authority could direct an entry-level separation (uncharacterized), honorable discharge, or general discharge under honorable conditions. 6. On 12 May 2009, the applicant acknowledged that he was advised of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of his rights. He also acknowledged that he had been afforded the opportunity to consult with civilian and/or military counsel. He waived consulting counsel. He did not indicate that statements in his own behalf were submitted and he placed his signature on the document. 7. The company commander recommended the applicant be discharged UP AR 635-200, chapter 5, paragraph 5-17. The basis for the recommended action was a mental health evaluation by a psychiatrist in which it was determined the applicant had a condition, not a disability (adjustment disorder with disturbance of emotions and conduct). 8. The separation authority approved the applicant’s discharge recommendation and directed he be discharged based on a condition, not a disability (adjustment disorder with disturbance of emotions and conduct) with issuance of an entry-level separation (uncharacterized). 9. The applicant's DD Form 214 shows he was discharged on 9 June 2009. He completed 3 months and 23 days of net active service. It shows: * item 25 (Separation Authority) – AR 635-200, paragraph 5-17 * item 26 (Separation Code) – "JFV" [Condition, Not a Disability] * item 27 (Reentry Code) – "3" [Not considered fully qualified for reentry at time of separation, but disqualification is waivable] * item 28 (Narrative Reason for Separation) – "Condition, Not A Disability" 10. In support of his application the applicant provides copies of the following documents: a. A medical record (3 pages) that shows BJ, Marriage and Family Therapist (MFT) Intern, and TD, LPC, conducted an interview of the applicant on 6 June 2015, based on self-referral to rule out a diagnosis of adjustment disorder for entry into the National Reserves. The record offers two pages of the applicant's personal history. The Diagnostic Formulation/Significant Findings/Summary section shows, "After consideration of Client's biopsychosocial interview, including past, recent, and current symptoms, Client does not meet the criteria for any diagnosis per the DSM-5 [Diagnostic and Statistical Manual of Mental Disorders] at this time." The counselors signed the document on 8 June 2015. b. A printout of Army reenlistment codes from an unidentified source with the following entry highlighted in yellow: "RE-3 – Individuals who are not considered qualified for continued Army service, but the disqualification is waiverable. Ineligible for enlistment unless a waiver is granted." c. An extract of AR 635-5-1 (SPD Codes), page 5, with SPD "JFV; Condition, Not a Disability; AR 635-200, paragraph 5-17" highlighted in yellow. REFERENCES: 1. AR 635-5-1 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 shows the SPD code of "JFV" is the appropriate code to assign Soldiers separated under the provisions of AR 635-200, paragraph 5-17, based on "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." 2. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA. Table 3-1 includes a list of the RA RE codes and shows that – * RE-1 applies to Soldiers who are qualified for reentry or continuous service at time of separation, if all other applicable 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 DISCUSSION: 1. The applicant contends his RE code should be changed because he was fully qualified for retention in military service, he had no prior history of a disqualifying medical disorder, and the examining physician made a diagnosis that resulted in the applicant's military service being unjustly terminated. 2. Records show the applicant entered active duty on 17 February 2009. a. He was seen by behavioral health staff on four occasions in April 2009 for incidents involving anger toward drill sergeants and his peers which had become confrontational. Based on a psychological assessment, the appropriate medical authority determined that the applicant had a condition that existed prior to service. She recommended he be discharged UP AR 635-200, paragraph 5-17. b. The Chief, Behavioral Health (a psychiatrist) noted the applicant's "disorder is so severe that his ability to function effectively in the military environment is significantly impaired." He affirmed the applicant's diagnosis of adjustment disorder with disturbance of emotions and conduct. He also recommended the applicant be administratively discharged UP AR 635-200, paragraph 5-17. 3. The applicant's administrative separation under the provisions of AR 635-200, paragraph 5-17, based on 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 type of discharge directed and narrative reason, including the SPD and RE codes, shown on the applicant's DD Form 214 are appropriate and correct. 4. The applicant's contentions were considered; however, they are not supported by the evidence of record. a. Two military medical providers arrived at the diagnosis in 2009. b. The fact that civilian medical providers indicate that he does not meet the criteria for any diagnosis per the DSM-5 in 2015 (more than 6 years after his discharge) is noted. 5. The applicant is advised that an RE code of "3" applies to persons who are not considered fully qualified for reentry or continuous service; however, it allows for a waiver of the disqualification. Therefore, if he desires to reenter military service, he should contact a local recruiter who can advise him on his eligibility for returning to military service. Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014680 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014680 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2