RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            05 October 2006
      DOCKET NUMBER:   AR20060003575


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Gunlicks                |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Scott Faught                  |     |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 reconsideration of his previous request that his
records be corrected to show that he was promoted to the rank of staff
sergeant (E-6).  He also request that his records be corrected to show that
he was medically retired from the Army; and that his reentry eligibility
(RE) code be changed.

2.  The applicant states that after three tours in Vietnam, he found out
that the reason that he was not selected for promotion to staff sergeant (E-
6) and was unable to perform his duties, was due to post-traumatic stress
disorder (PTSD).

3.  The applicant provides in support of this application a letter from the
Department of Veterans Affairs (DVA) dated 18 October 1999, which reflects
that his service-connected disability rating increased from 50 percent to
70 percent; and three self-authorized statements dated 14 March, 19 March,
and 13 June 2006.  These documents were not previously reviewed by the Army
Board for Correction of Military Records (ABCMR); therefore, they are
considered new evidence for consideration by the Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 7 April 1983.  The application submitted in this case is
dated 23 February 2006.

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.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2001052887, on 1 August 2001.


4.  After completing 7 years, 9 months, and 9 days of total active service,
he reenlisted in the Army for 5 years on 30 January 1976, in the pay grade
of E-5.  After being granted a waiver of grade requirement criteria, he
reenlisted in the Army again on 24 January 1980, for 3 years, in the pay
grade of E-5.

5.  Nonjudicial punishment (NJP) was imposed against the applicant on 18
June 1981, for assaulting another soldier with intent to cause grievous
bodily harm, and for committing an indecent assault upon a female German
National on 6 June 1981.  His punishment consisted of a forfeiture of pay
in the amount of $150.00 per month for 2 months.

6.  The available records indicate that he had NJP imposed against him for
being disrespectful towards a senior noncommissioned officer and for
failure to go at the time prescribed to his appointed place of duty.  His
punishment consisted of a reduction in rank (suspended).

7.  On 17 July 1981, the applicant was notified that Department of the Army
(DA) had reviewed his records and determined that he did not demonstrate
professional ability by his performance of duty or maintain standards of
conduct which set an example for younger Soldiers.  A DA bar to
reenlistment was imposed under the Qualitative Management Program (QMP).
The NJPs that had been imposed against him and the last five of his
Noncommissioned Officer Evaluation Reports, which were substandard, were
cited as the basis for his bar to reenlistment.

8.  The applicant submitted an appeal to the DA imposed bar to
reenlistment.  His appeal was denied on 21 March 1983.  In the response to
his appeal, denial was based on his average evaluation score of 88.7 being
well below that of his peers (119.03); and his performance, conduct, and
potential not meeting the standards expected of a Soldier with his grade
and experience.

9.  Accordingly, on 7 April 1983, the applicant was honorably discharged,
in the pay grade of E-5, under the provisions of Army Regulation 635-200,
chapter 4, at the expiration of his term of service.  He had completed
14 years, 11 months, and 17 days of total active service and his DD Form
214 (Certificate of Release or Discharge from Active Duty) shows that he
was assigned reenlistment codes of RE-3 and RE-3C.

10.  On 1 August 1983, the Chief Reserve Component Personnel and
Administration Center furnished the applicant a DD Form 215 (Correction to
DD Form 214), correcting his RE code to reflect RE-4.

11.  A review of the available record fails to show that the applicant was
ever diagnosed with PTSD while he was in the Army.

12.  In the 18 October 1999 DVA letter that he submitted with his
application, the DVA notified the applicant that his PTSD service-connected
disability rating had increased from 50 percent to 70 percent.  The letter
also indicates that he has been awarded a 10 percent service-connected
disability rating for traumatic arthritis, and a 10 percent service-
connected disability rating for tinnitus, for a combined service-connected
disability rating of 80 percent.

13.  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 the 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 the basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.

14.  Army Regulation 601-210 provides the guidance for the issuance of RE
codes upon separation from active duty.  It states, in pertinent part, that
these codes are not to be considered derogatory in nature; they are simply
codes that are used for identification of an enlistment processing
procedure.  An RE-4 code applies to persons with a non-waivable
disqualification.

15.  Title 38, United States Code, sections 1110 and 1131, permits the DVA
to award compensation for a medical condition which was incurred in or
aggravated by active military service.  The DVA, however, is not required
by law to determine medical unfitness for further military service.  The
DVA, in accordance with its own policies and regulations, awards
compensation solely on the basis that a medical condition exists and that
said medical condition reduces or impairs the social or industrial
adaptability of the individual concerned.  Consequently, due to the two
concepts involved, an individual's medical condition, although not
considered medically unfitting for military service at the time of
processing for separation, discharge, or retirement, may be sufficient to
qualify the individual for DVA benefits based on an evaluation by that
agency.

16.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that
for an individual to be found unfit by reason of physical disability, he
must be unable to perform the duties of his office, grade, rank or rating.


17.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when
a member is being separated by reason other than physical disability, his
continued performance of duty creates a presumption of fitness which can be
overcome only by clear and convincing evidence that he was unable to
perform his duties or that acute grave illness or injury or other
deterioration of physical condition, occurring immediately prior to or
coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  Title 38, United States Code, sections 1110 and 1131, permits the DVA
to award compensation for disabilities which were incurred in or aggravated
by active military service.

2.  The fact that the DVA, in its discretion, has awarded the applicant a
disability rating is a prerogative exercised within the policies of that
agency.  It does not, in itself, establish physical unfitness for
Department of the Army purposes.

3.  The applicant's contentions regarding his PTSD have been noted.
However, the available records indicate that he was medically fit for
retention at the time of his separation.  He was separated from the Army at
the expiration of his term of service as a result of a DA imposed bar to
reenlistment.  The fact that the DVA has awarded him compensation for PTSD
is not sufficient justification to warrant granting his request for
correction of his records to show that he was medically retired from the
Army.

4.  Additionally, the applicant's DD Form 214 was corrected to reflect that
he was separated and assigned RE codes in accordance with regulations then
in effect.  The RE code that he was assigned properly reflects that he had
a DA imposed bar to reenlistment, and there is no basis for granting his
request to change his RE code.

5.  The applicant is not entitled to correction of his records to show that
he was promoted to the pay grade of E-6.  He has not shown that he was
granted unit promotion list status for the pay grade of E-6, or that he was
improperly denied promotion to the pay grade of E-6 by a unit promotion
board.  In view of the foregoing, there is no basis for granting the
applicant's requests.

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

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 April 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 April 1986.  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

___JG___  ___MF __  ___SF __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of
the ABCMR set forth in Docket Number AR2001052887, dated 1 August 2001.

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 Gunlicks_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003575                           |
|SUFFIX                  |                                        |
|RECON                   |20010801                                |
|DATE BOARDED            |20061005                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19830407                                |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 4                        |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  4    |100.0300/RE CODE                        |
|2.  177                 |108.0000/DISABILITY RETIREMENT          |
|3.  310                 |131.0000/PROMOTION                      |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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