APPLICANT REQUESTS: Reconsideration of her previous request to correct her records by showing that she was separated due to physical disability in lieu of for the expiration of term of service (ETS).
APPLICANT STATES: In effect, that she continues to require medical attention and operations for various conditions she acquired on active duty prior to discharge. That the reentry code of RE-3 requires a waiver to reenlist, which proves she was not medically fit for retention.
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on
5 February 1997 (COPY ATTACHED).
As new evidence in support of her application the applicant submits graphic photographs that show scar tissue and an open wound, copies of extracts of her military medical records, copies of post service medical records, copies of the reenlistment code regulation and her own statements to support her contention that she was not physically fit for separation.
On 26 June 1997 the Board was again advised (COPY ATTACHED) by the Department of the Army Review Boards Agency (DARBA) Medical Advisor that evidence of record does not support the applicants claim that she should have been medically separated from the Army.
Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:
1. The applicants RE code has no relationship to physical disability.
2. The photographs submitted by the applicant do not show she was unfit at the time of separation. The law and regulations cited in the Boards prior consideration of the applicants case make it clear that to be separated for physical disability a soldier must be physically unable to perform duty and that the presence of a medical condition that was acquired or aggravated while entitled to basic pay does not necessarily require a medical evaluation board or qualify an individual for physical disability.
3. Furthermore, the MOC points out that the Military and VA systems are essentially different.
4. The rating action by the VA does not necessarily demonstrate any error of injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.
5. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation. There is no right to a medical evaluation board. Individuals are referred to a medical evaluation board when, in the opinion of their attending military doctors, a medical condition may make them incapable of performing duty.
6. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.
7. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ CONCUR WITH DETERMINATION
Loren G. Harrell
Director
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