RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 APRIL 2006
      DOCKET NUMBER:   AR20050010966


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Ms. Naomi Henderson               |     |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 be changed to a more
favorable code that will allow him to again enlist in the service and enter
active duty.

2.  The applicant states that while there is no error in his case, he has
since healed and has been evaluated by a regular doctor and orthopedic
doctor who indicate that he no longer has a problem.

3.  The applicant provides statements from two physicians with his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 August 1998.  The application submitted in this case was
received on 1 August 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.  He enlisted in the Regular Army in Phoenix, Arizona, on 10 September
1996 for a period of 3 years and training as a combat engineer.  He
completed his One Station Unit Training (OSUT) at Fort Leonard Wood,
Missouri, and was transferred to Fort Benning, Georgia, for his first duty
assignment.  He was advanced to the pay grade of E-3 on 1 March 1998.

4.  On 22 June 1998, after being evaluated by a Medical Evaluation Board
(MEB), a Physical Evaluation Board (PEB) convened at Fort Sam Houston,
Texas, determined that the applicant suffered from Retropatellar Pain
Syndrome, Left Knee, and that his chronic pain with activity and his
physical profile restrictions precluded him from performing the duties of
his military occupational specialty.  The PEB found that he was physically
unfit and recommended a disability rating of 10%.  The applicant concurred
with the findings and recommendations of the PEB and waived a formal
hearing of his case.

5.  The appropriate authority approved the findings and recommendations of
the PEB on 26 June 1998.

6.  Accordingly, he was honorably discharged on 22 August 1998, under the
provisions of Army Regulation 635-40, paragraph 4-24B(3) due to disability,
with severance pay.  He had served 1 year, 11 months and 13 days of total
active service and was paid $4,316.40 in disability severance pay benefits.
 He was assigned a Separation Code of “JFL” and an RE Code of “3”.

7.  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
processing into the Regular Army and the USAR.  Chapter 3 of that
regulation prescribes basic eligibility for prior service applicants for
enlistment.  That chapter includes a list of armed forces RE codes which
reflects that Separation Code “JFL” requires a RE Code of “3”.

8.  RE-3 applies to persons not qualified for continued Army service, but
the disqualification is waivable.  A waiting period of 2 years from
separation is required before a waiver may be submitted.  Individuals may
apply for a waiver through their nearest recruiting office.  Approval and
disapproval of waivers are normally based on the needs of the Service at
the time and the overall circumstances surrounding the individual’s
previous separation.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy that requirement.

2.  The applicant’s administrative separation was accomplished in
accordance with applicable regulations with no indication of any violations
of the applicant’s rights.

3.  The applicant was separated under the provisions of Army Regulation
   635-40 and was properly issued an RE Code of RE-3 in accordance with the
applicable regulations.



4.  Accordingly, the proper approach for the applicant to obtain reentry
into military service would be to periodically check with his local
recruiting office, with his documentation to substantiate his claim that
his disability no longer exists, and to apply for a waiver to reenter the
service.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 August 1998; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 21 August 2001.  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

___LE __  ___JM___  ___NH __  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.




                                  ______Lester Echols______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050010966                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060427                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19980822                                |
|DISCHARGE AUTHORITY     |AR 635-40, Para 4-24B(3)                |
|DISCHARGE REASON        |DISABILITY, SEVERANCE PAY               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |4/RE CODE                               |
|1.100.0300              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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