RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2007 
	DOCKET NUMBER:  AR20060013907 


	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.

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	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 honorable discharge of 13 February 1993 be changed to a medical discharge, and that his reentry (RE) code be changed from RE-3C to a more favorable code.  

2.  The applicant states, in effect, that he is requesting a correction to his separation document (DD Form 214) to show he was released from active duty (REFRAD) by reason of a medical discharge vice expiration of term of service as is currently reflected.  He also states that he received severance pay rather than disability compensation for his medical condition and that Item 18 (Remarks) incorrectly shows an expiration date for his medical coverage.  He also states that the RE code listed on his DD Form 214 does not allow him to reenlist.  

3.  The applicant provides his DD Form 214 and a copy of his service medical record in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 13 February 1993.  The application submitted in this case is dated 14 September 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's records show he enlisted in the Regular Army (RA) and entered active duty on 30 April 1986.  He was trained in, awarded, and served in military occupational specialty (MOS) 88H (Cargo Specialist).  It also shows the highest rank he attained while serving on active duty was specialist (SPC).

4.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any medical treatment records that show he suffered from a disabling medical or mental condition that rendered him unfit for further service at the time of his separation processing.  
5.  The applicant's record does contain a Report of Medical Examination (SF 88), which was prepared during his separation processing on 22 September 1992.  This document noted no disqualifying medical conditions and the applicant was determined to be qualified for retention/separation by the examining physician. 

6.  The applicant's record contains a Memorandum for the Transition Point, dated 
30 November 1992.  This document states that the applicant was ineligible for reenlistment due to exceeding the Retention Control Point (RCP) for his current grade of SPC.

7.  On 13 February 1993, the applicant was honorably released from active duty (REFRAD) after completing a total of 6 years, 9 months, and 14 days of active military service.  The DD Form 214 he was issued upon his separation shows he was separated under the provisions of chapter 4, Army Regulation 635-200, by reason expiration of term of service.  Item 18 (Remarks) shows the applicant was authorized separation pay and therefore was eligible for continued medical coverage from the date of separation through 13 June 1993.  Item 26 (Separation Code) shows he was assigned a Separation Program Designator (SPD) code of LBK and Item 27 (Reentry Code) shows he received an RE code of RE-3C.

8.  The applicant provides a copy of military service medical record.  This record contains many treatment records documenting all the treatment the applicant received for numerous conditions while he was serving on active duty.  However, the medical record also contains the applicant's final physical examination that confirms he was determined to be qualified for retention/separation by competent medical authority at the time of his discharge.  There are no records showing he suffered from a disabling medical condition that would have warranted his separation processing through medical channels at the time of his discharge. 

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) then in effect, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied 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.  Chapter 3 provides guidance on presumptions of fitness.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  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.  

10.  Chapter 4 of the same regulation further states that the PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

11.  Title 10 of the United States Code, Section 1174, provides the authority for separation pay for regular enlisted members who are denied reenlistment.  It states, in pertinent part, that a regular enlisted member of an armed force who is discharged involuntarily or as the result of the denial of the reenlistment who has completed six or more, but less than 20, years of active service immediately before that discharge is entitled to separation pay.

12.  Department of Defense Financial Management Regulation, Volume 7A, Chapter 35 (Separation Pay Non-disability) prescribes criteria for authorization of full payment of non-disability separation pay.  It states in pertinent part that full payment of non-disability separation pay has been authorized to military service members of the Regular and Reserve Components who have been involuntarily separated from active duty either through the denial of reenlistment or the denial of continuation on active duty.  The member must be fully qualified for retention but be denied reenlistment or continuation on active duty.  This includes members who are denied reenlistment or continuation on active duty under established promotion or high year tenure (RCP) policies.  Army policy created on this subject stipulates that members separated based on RCP are entitled to full separation pay.  

13.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of LBK is the appropriate code to assign Soldiers ineligible for, barred from, or otherwise denied reenlistment or who are separated on completion of enlistment under the provisions of chapter 4, Army Regulation 635-200.  Table 2-3 (SPD/RE Code Cross Reference Table) establishes RE-3 as the proper reentry code to assign to Soldiers separated with a SPD code of LBK.  


14.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA 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-3 applies to persons completing their terms of service who are not considered fully qualified for reentry or continuous service at the time of separation but the disqualification is waivable.  RE4 applies to persons with a permanent disqualification that is not waivable.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical discharge was carefully considered.  However, the evidence of record is void of any medical evidence that suggests the applicant suffered from a physically disabling condition that rendered him unfit to perform his military duties, or that would have warranted his processing through the Army’s PDES at the time of his discharge. 
Therefore, there is an insufficient evidentiary basis to support granting the requested relief.

2.  By regulation a regular enlisted member of the armed forces who is discharged involuntarily or as a result of the denial of reenlistment who has completed 6 or more, but less than 20, years of active service immediately before that discharge is entitled to separation pay.  The applicant's DD Form 214 confirms, in Item 18, that he was authorized separation pay and that based on this entitlement, he was further eligible to receive 90 days of extended medical coverage from 13 February 1993, the date of his separation, through 13 June 1993.

3.  By regulation, the SPD code of LBK and the RE code of RE-3 are the proper codes to assign members separated under the provisions of Chapter 4, 
Army Regulation 635-200, by reason of expiration of term of service who are ineligible for reenlistment, which includes members who have reached their RCP. Therefore, absent any evidence to support the applicant's allegations, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  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.  The applicant is advised that RE-3 is applicable to members who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  Therefore, if he desires to reenlist, he should contact a local recruiter to determine his eligibility based on the needs of the Army and can process an RE code waiver.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 February 1993.  Therefore, the time for him to file a request for correction of any error or injustice expired on 12 February 1996.  He 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

_x  __x  _  x_  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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060013907
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/28
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1993/02/13
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.