RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2005
      DOCKET NUMBER:  AR20050001905


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Reentry (RE) Code of "4" be change to a
more favorable code.

2.  The applicant states that he injured his leg while on active duty (AD),
had an operation on it, and was discharged after 4 years and 5 months of
service.  He was placed on the temporary disability retired list (TDRL) and
retired.  The type of separation should have been medical and not an RE
Code of "4".  He now needs his RE Code changed to a 2 or 1.  He desires to
serve in the Army Reserve as a chaplain but cannot unless his RE Code is
corrected and his RE Code prevents him from serving.

3.  The applicant provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error, which
occurred on 30 December 1991, the date he was placed on the TDRL.  The
application submitted in this case is dated 26 January 2005.

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 limitations 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.  The applicant's military records show he entered active duty (AD) on
11 August 1987, as a fire support specialist (13F).  He was promoted to
specialist (SPC/E-4) on 1 August 1989.

4.  On 21 July 1990, the applicant was involved in a motorcycle accident in
which he sustained multiple trauma.  He was admitted to the North Ridge
Medical Center near Los Angeles.  He was diagnosed as having a right Grade
I open femur fracture, right open Grade III tibia-fibula fractures, closed
right ulna fracture, maxillary fractures, and closed head injury, with a
right parietal-occipital contusion without signs of shift on the CT scan.
He was transferred to a Naval Hospital in San Diego and was admitted to the
Orthopedic Service.
5.  On 17 February 1991, the applicant appeared before a Medical Evaluation
Board (MEB) at the Naval Hospital, in San Diego, California.  He was
diagnosed as having a right open Grade III tibia-fibula fractures, status
post external fixation, rotational gastrocnemius and split thickness skin
grafts and placement of right Iliac crest bone graft; right Grade I open
femur fracture, status post ORIF with statically interlocked intermedullary
nail; closed right ulna fracture, status post open reductions and internal
fixation; Alveolary maxillary fracture, status post bracing; and closed
head injury, now resolved.  The MEB determined that the applicant had not
sufficiently recovered to perform the duties of his rank and would need
ongoing orthopedic specialty care.  The Navy MEB recommended that the
applicant's case be referred to a physical evaluation board (PEB) for
disposition.

6.  On 20 May 1991, the applicant was given a permanent physical profile of
133111.  He was deemed unable to perform the current duties of his primary
military occupation specialty (PMOS).

7.  On 24 May 1991, the Deputy Commander for Clinical Services (DCCS), US
Army Medical Department Activities, Fort Irwin, California, prepared a
memorandum for the President of the PEB, at the Presidio of San Francisco,
California.  He informed the President, PEB, that the applicant had an MEB
by another medical treatment facility, other than the Army.  His MEB had
been reviewed by him and that the MEB was in compliance with Army
Regulation
635-40.

8.  On 10 June 1991, the applicant's case was considered by an informal
PEB. The PEB found the applicant unfit and recommended a combined rating of
50 percent and that he be placed on the TDRL with a reexamination on
28 February 1992.  The PEB indicated that the applicant's injury did not
result from a combat related injury.  On 12 June 1991, the applicant
concurred with the results of the PEB and waived a formal hearing of his
case.

9.  On 30 December 1991, the applicant was placed on the TDRL with 50
percent disability, in the rank of SPC.  He had completed 4 years,
4 months, and 20 days of active Federal service.  The applicant was given a
Reentry Code of "4."

10.  The applicant was reexamined on 29 September 1993 and completed on
30 September 1993.  He was diagnosed as having a right ankle post-traumatic
arthritis, severe, primary reason for separation in accordance with Army
Regulation 40-501; right ankle contracture, secondary reason for separation
in accordance with Army Regulation 40-501; right knee flexion contracture,
mild;
right tibia/fibula fracture, open Grade III-B, healed; right femur
fracture, Grade I open, healed; and right ulnar fracture, healed.  The
applicant was unable to participate as a Soldier because of his ankle
arthritis.  If he was to continue working as an Artilleryman, he would not
be able to participate in physical training (PT), nor would he be able to
perform his duties out in the field as a forward observer.  It was
recommended that the applicant be separated because his condition would
most likely require effusion of his right ankle in the future.  In
addition, the applicant would need his hardware removed on his right femur
and his right ulnar.

11.  On 11 October 1993, the applicant concurred with the contents of the
TDRL evaluation summary.  On 6 October 1993, the DCCS had prepared a
recommendation that the applicant’s status be made permanent.

12.  On 29 October 1993, the applicant’s case was reviewed by an informal
PEB. The PEB found the applicant to be physically unfit and recommended a
combined rating of 10 percent with severance pay if otherwise qualified.
The PEB recommended that the applicant’s name be removed from the TDRL.  On
2 November 1993, the applicant nonconcurred with the results of the PEB and
demanded a formal hearing with personal appearance.  He consulted with
counsel and authorized counsel access to his medical records.

13.  On 14 January 1994, the applicant's case appeared before a formal PEB
with counsel.  The applicant elected not to appear and did not appear
before his formal PEB.  The PEB found the applicant unfit and recommended a
combined rating of 20 percent and separation with severance pay if
otherwise qualified.  On 27 January 1994, the applicant concurred with the
results of the PEB.

14.  The applicant was removed from the TDRL, effective 29 March 1994 with
severance pay in the pay grade of E-4.

15.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier’s medical status and duty limitations insofar as duty is
affected by the Soldier’s status.  A decision is made as to the Soldier’s
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the medical evaluation board determines the Soldier does not
meet retention standards, the board will recommend referral of the Soldier
to a physical evaluation board.
16.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

17.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by
the Total Army Personnel Command (PERSCOM) upon the final decision of the
Physical Disability Agency (PDA).  It states that PERSCOM will dispose of
the case by publishing orders or issuing proper instructions to subordinate
headquarters, or return any disability evaluation case to the United States
Army Physical Disability Agency (USAPDA) for clarification or
reconsiderations when newly discovered evidence becomes available and is
not reflected in the findings and recommendations. Subparagraph 4-24b(2)
applies to placement on the TDRL and 4-24b(1) applies to permanent
retirement for physical disability.

18.  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.

19.  RE-4 applies to persons not qualified for continued service by virtue
of being separated from the service with non-waivable disqualifications.

20.  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 chapter 9, 10,
13, 14, and 16 of Army Regulation 635-200. 

21.  RE-2 applies to Soldiers being separated before completing a contract
period of service whose reenlistment is not contemplated.

22.  RE-1 applies to persons completing their term of service (ETS) who are
considered qualified to reenter the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant injured his leg while on AD,
appeared before an MEB and PEB, and was found unfit for duty.  He was
placed on the TDRL on 30 December 1991 with a reexamination on 28 February
1992.  He was reexamined on 29 September 1993 and was deemed unable to
participate as a Soldier because of his ankle arthritis.  He was also
unable to participate in PT as an Artilleryman and was unable to perform
the field duties as a forward observer.

2.  The applicant concurred with the contents of the TDRL evaluation
summary.  His case was reviewed by an informal PEB and he was found to be
physically unfit.  The PEB recommended a combined rating of 10 percent with
severance pay.  He nonconcurred and demanded a formal hearing with personal
appearance.  He elected not to appear and his case appeared before a formal
PEB with counsel.  He was found unfit.  A recommendation was made that he
be placed on the permanent physical disability list and that he be awarded
a 20 percent disability rating with severance pay.  He was removed from the
TDRL because of permanent physical disability and was issued an RE Code of
"4".

3.  The applicant's narrative reason for separation and RE Code of "4" is
consistent with the basis for his separation in this case and there is
insufficient evidence upon which to base a correction to the existing
narrative reason or    RE code.

4.  It is apparent that the applicant wishes to enlist in the Army Reserve
to serve as a chaplain; however, the narrative reason and RE Code of "4"
prevents him from reenlisting.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 December 1991; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 29 December 1994.  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 timely file in this case.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JEV____  __CVM__  ___LB___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  __      James E. Vick_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001905                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051026                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19940329                                |
|DISCHARGE AUTHORITY     |AR635-40 paragraph 4-24e(2)             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |





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