RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      19 April 2007
      DOCKET NUMBER:  AR20060011222


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John N. Sloane                |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. John G. Heck                  |     |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, in effect, that his reenlistment code (RE) code
be changed to an RE-3.

2.  The applicant states, in effect, he was not fit for the infantry due to
his knee but he was not given an option for other service.  He alleges that
a doctor at West Point stated his knee was not good enough for the infantry
but it would still allow him to do other duties.  At the time of his
separation, reclassification was not an option.  He would like to have an
opportunity to still serve his country and an RE-3 would give him this
opportunity.  He acknowledges he would still have to pass a military
examination to reenlist.  He concludes by asking the Board to change his
reenlistment code so he can reenlist with an MOS [military occupational
specialty] different than infantry.

3.  In support of his application, the applicant provides a copy of his DD
Form 214, Certificate of Release or Discharge from Active Duty.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 20 October 1988, the date of his discharge.  The
application submitted in this case is dated 3 August 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.  The applicant enlisted in the US Army Reserve on 16 December 1985.  On
28 January 1986, the applicant enlisted in the Regular Army.  He
successfully completed one station unit training (OSUT) at Fort Benning,
Georgia.  On completion of his OSUT, he was awarded the military
occupational specialty 11B, Light Weapons Infantryman.

4.  On 14 May 1986, he was assigned to Company C, 1st Battalion, 22nd
Infantry, Fort Drum, New York, for duty in the MOS 11B as a grenadier.

5.  Documents pertinent to the applicant's discharge from the service are
not on file in his service personnel records, nor are his medical records;
however, a DA Form 3647, Inpatient Treatment Record Cover Sheet, which
shows he was admitted to Keller Army Community Hospital, West Point, New
York, on 18 April 1988 and was placed on the permanent disability retired
list on 28 October 1988 is available for the Board's review.  An undated DA
Form 3705, Receipt for Outpatient Treatment/Dental Records, showing the
applicant receipted for his medical records is also available.

6.  The Inpatient Treatment Record Cover Sheet shows the applicant was
diagnosed with chronic anterolateral rotary instability of the left knee,
degenerative joint disease of the left knee, and patella femoral pain
syndrome of the left knee.  This treatment record also shows a Medical
Evaluation Board (MEB) convened on 29 July 1988, a Physical Evaluation
Board (PEB) convened on 23 August 1988 to review his records and
determine his medical suitability for continued military service.  The
PEB recommended his separation with a physical disability rating of 20%
and that he be discharged for Physical Disability, with Severance Pay.

7.  The DD Form 214 issued to the applicant on his discharge date shows he
completed 2 years, 6 months, and 14 days active military service, and held
the rank of PFC (private first class) on the date of his discharge.  It
also shows that he was discharged under the provisions of Army Regulation
(AR) 635-40, paragraph 4-24e(3), for Physical Disability, with Severance
Pay, and as a result he was assigned a separation code of "JFL" and an RE
code of "4."

8.  AR 635-40 establishes the Army Physical Disability Evaluation System
(PDES) 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 or her office, grade, rank, or rating.
 In each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

9.  AR 635-40 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.

10.  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.

11.  AR 635-5-1 provides the specific authorities (regulatory
or directive), reasons for separating Soldiers from active duty, and the
separation codes to be entered on the DD Form 214.  The version of the
regulation in effect at the time of the applicant's discharge stated, in
pertinent part, that the separation code of "JFL" was the appropriate code
to assign to Soldiers separated under the provisions of AR 635-40, by
reason of Physical Disability, with Severance Pay.  The SPD [separation
Program Designator]/RE Code Cross Reference Table in effect at the time
indicated that RE-4 would be assigned.

12.  AR 601-210 provides the criteria, policies, and procedures for
enlistment and processing into the Regular Army and the United States Army
Reserve (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, including RA RE codes.  RE-1 applies to persons
completing their terms of service who are considered fully qualified to
reenter the United States Army, RE-3 applies to persons who are not
considered fully qualified for reentry or continuous service at the time of
separation, but the disqualification is waivable, and RE-4 applies to
persons who have a non-waivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the examining physician stated he could
be retained and reclassified to another MOS has been considered; however,
there is no evidence and the applicant has provided none to support this
contention.

2.  The evidence of record shows the applicant's medical conditions were
submitted to medical and physical evaluation boards for review.  These
boards determined, based upon the medical evidence and records, that the
applicant was not medically fit to continue service in the Army and
recommended he be placed on the permanent physical disability retired list
with a 20% disability rating.

3.  The applicant was discharged under the provisions of AR 635-40,
paragraph 4-24e(3), for Physical Disability, with Severance Pay, and as a
result he was assigned a separation code of "JFL" and an RE code of "4."
These were the correct separation code and the correct RE code to apply in
this case.

4.  Even though all the records pertinent to the applicant's separation for
physical disability are not available for the Board's review, sufficient
evidence is available to presume Government regularity in the discharge
processed.  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 this
requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 October 1988, the date of his
discharge.  Therefore, the time for him to file a request for correction
of any error or injustice expired on 19 October 1991.  He failed to 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

___JH___  ___S____  _DH____  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.




                                  ____  John N. Slone_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060011222                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070419                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |110.0200                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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