RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 16 DECEMBER 2003
         DOCKET NUMBER: AR2003091089


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. John N. Slone		Member
Ms. Shirley L. Powell		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his 1984 Reenlistment Eligibility (RE) Code be changed to permit him to enlist in the United States Naval Reserve.

2. The applicant states, in effect, that he was discharged from the Army in 1984 as a result of a foot problem. He states that had he been aware then, that he could have requested a waiver and remained on active duty he would have done so.

3. He states that he has had no problems with his feet since his separation from active duty and currently runs, works a demanding job, and had earned his Black Belt in the martial art form of Tae Kwon Do. He states that he has statements from two orthopedic surgeons attesting that his “feet are in excellent condition.” However, he states he is still not being permitted to enlist in the United States Naval Reserve because of his previous RE code.

4. In support of his request he submits photographs of his feet, statements from various physicians indicating that he does not have any feet problems, including a recent physical examination indicating that he was qualified for enlistment. He also submits statements from coworkers and friends who attest to the applicant’s physical abilities and lack of foot pain, and a copy of his Tae Kwon Do certificate.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice which occurred on
26 October 1984. The application submitted in this case is dated 20 April 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. Records available to the Board indicate that the applicant entered active duty on 30 August 1984. An enlistment physical examination, conducted on 3 May 1984, indicated that the applicant responded “yes” to a question regarding whether he ever had or had now any foot trouble. In spite of the applicant’s response, he was found medical qualified for enlistment.

4. The applicant commenced basic combat training on 6 September 1984 at Fort Dix, New Jersey. By 19 September 1984 he was reporting to medical personnel that he was having bilateral foot pain. Medical personnel saw him on
22, 25, and 26 September and again on 2 October 1984 for foot pain. On
2 October 1984 the applicant was issued a physical profile for bilateral plantar fascitis and bilateral patellofemoral syndrome and knees with tight hamstrings.

5. On 11 October 1984 an Entrance Physical Standards Board noted that the applicant’s foot condition was congenital and that “ever since he was a child, he had problems with both feet.” The board noted that he recently experience bilateral “planter foot pain secondary to activity” and that he had mild bilateral knee pain secondary to an altered gait. The board proceedings reported the applicant’s chief complaint as “painful balls of both feet and arches” and that x-rays revealed “a low calcaneal inclination ankle, navicular cuneiform sag, anteriorly displaced talus, [and] degenerative joint changes at the anterior ankle margin of the talus.”

6. The board concluded that the applicant’s pre-existing foot condition rendered him unfit for enlistment and recommended that he be discharged. The applicant concurred and requested discharge.

7. On 26 October 1984 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-11 for failing to meet procurement medical fitness standards. He was issued a Separation Program Designator (SPD) Code of JFT and a RE code of 3. The applicant had less than 60 days of creditable service at the time of his administrative discharge.

8. Army Regulation 635-200, paragraph 5-11, stated that members who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment will be discharged when medical proceedings, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authorities within 6 months of the member’s initial entrance on active duty, which would have disqualified him for entry into the military service had it been detected at that time.

9. 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 United States Army Reserve. Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment. That chapter included a list of armed forces RE codes, including RA RE codes. RE-3 applies to those individuals who were not considered fully qualified for reenlistment or continuous service at the time of separation, including individuals involuntarily discharged as a result of pre-existing medical conditions. A “cross-reference” chart, provided by officials from the separations branch at the United States Army Human Resources Command-Alexandria, notes that RE-3 is the appropriate RE code for individuals who receive an SPD code of JFT.

10. Army Regulation 601-210 also states that RE codes may be changed only if they are determined to be administratively incorrect. Individuals who have correct RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized. It specifically notes that no requirement to change an RE code exists to qualify for enlistment. Only when there is evidence to support an incorrect RE code or when there is an administrative error will a request for correction be initiated. The RE-3 code is waivable. Army Regulation 601-210 which establishes the policies and provision for the enlistment of prior and non-prior service members in the Army, states that any applicant for enlistment, who was last separated or discharged from any component of the Armed Forces for medical reasons, with or without disability, will require a waiver for enlistment into the Regular Army or Army Reserve. Information regarding similar provisions in a Navy regulation was not available to the Board.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s separation for failing to meet procurement medical fitness standards was proper and accomplished in compliance with applicable regulations.

2. The applicant’s separation was based on the fact of a pre-existing foot condition which became sufficiently painful within days of entering basic combat training that he was unable to complete training. The applicant concurred with the findings of the Entrance Physical Standards Board and indicated that he did not wish to remain on active duty.

3. The applicant has provided no evidence, nor does he contend that he was able to complete his military training at the time of his separation.

4. The applicant’s subsequent diagnosis, nearly 20 years after his separation, is not an indication that he should not have been separated in 1984. While the current medical community may conclude that the applicant no longer has any of the symptoms associated with his 1984 diagnosis, none of the statements indicate the applicant was not experiencing painful feet in 1984.

5. Additionally, although the applicant may have recently passed an entrance physical examination, that does not serve as a basis to conclude that his 1984 RE code was incorrect. It was appropriate at the time, based on the circumstances which resulted in his 1984 discharge from the Army. Additionally, the fact that he may now be precluded from enlisting in the Naval Reserve or is unable to secure a waiver to enlist, does not serve as justification to change an appropriately assigned RE code.

6. Records show the applicant should have discovered the error or injustice now under consideration on 26 October 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 October 1987. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__JNS __ __SAC __ __SLP __ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  ___Samuel A. Crumpler____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091089
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031216
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	100.03
2.
3.
4.
5.
6.