RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   24 April 2007
	DOCKET NUMBER:  AR20060014951 


	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

Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Patrick H. McGann, Jr.  

Member

Mr. Gerald J. Purcell

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 reentry (RE) code be changed from RE-4 to an RE code that allows him to reenlist. 

2.  The applicant states, in effect, that he was honorably discharged because of a medical condition that no longer exists.  The applicant states he desires to serve his country again.  The applicant continues that the RE 4 was issued in error because his condition was not permanent.  The applicant states that he was 19 years old at the time of his discharge, had no assistance from counsel, and was unaware of his options.  

3.  The applicant further states that he did not know that he could have fought the discharge and stayed on active service while his condition improved.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a character of reference letter, dated 14 July 1994; and a Department of Veterans Affairs (DVA) Rating Decision, dated 1 October 1995 in support of this application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 September 1994, the date of his discharge from active duty.  The application submitted in this case is dated 25 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 enlisted in the Regular Army on 4 August 1993.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The applicant's record shows that he was promoted to the rank of private first class/pay grade E-3 on 1 June 1994.




4.  The applicant's records contain Medical Evaluation Board (MEB) Proceedings, dated 25 June 1994, which show that he was diagnosed with a Symptomatic Osgood-Schlatter's disease, and that this condition existed prior to service (EPTS).  The applicant's was referred the Physical Evaluation Board (PEB) based on his unfitting medical condition.

5.  The applicant's records contain PEB Proceedings, dated 3 August 1994, which show that he suffered from Symptomatic Osgood-Schlatter's disease in both knees that manifested leg pain without objective findings on examination or X-Ray findings.  The PEB finding shows that the applicant's condition EPTS and was not service aggravated.  The PEB findings also show the condition caused functional limitations in maintaining the appropriate level of mobility and agility which made the applicant unfit to perform the duties required of a private first class in the MOS of an Infantryman.  The PEB concluded that the applicant was physically unfit and recommended he be separated from the service without disability benefits for an EPTS condition.  

6.  On 8 August 1994, the applicant concurred with the recommendations of the PEB and waived his rights to a formal hearing.  The applicant's concurrence was authenticated by his signature on DA Form 199, dated 3 August 1994. 

7.  On 15 September 1994, the applicant was separated from active duty under the provisions of paragraph 4-24b (4) of Army Regulation 635-40 (Personnel Separations) for disability.  The applicant's DD Form 214 also shows that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of JFM for disability, existed prior to service, PEB and an RE-4 reentry code. 

8.  The applicant submitted a character reference letter, dated 14 July 1994, from the S-3 [operations] officer, Headquarters, 101st Military intelligence Battalion, Fort Riley, Kansas.  The letter states that the applicant was a model Soldier and that his medical profile did not significantly impact on his ability to accomplish any mission he was given.  The letter further states the applicant was a dedicated and professional Soldier who should be reclassified into an MOS compatible with his medical restrictions.

9. The applicant submitted a decision by the DVA, dated 1 October 1995.  The decision informed the applicant that his request for service-connected compensation for leg injuries to right knee and bilateral lower leg was denied.  



10.  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 (Regular Army and Army Reserve Enlistment Program) 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.  RE-4 applies to persons separated from last period of service with a nonwaivable disqualification. 

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator "JFM" as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as "Disability, Existed Prior to Service, PEB" and that the authority for discharge under this separation program designator is "AR 635-5-1, paragraph 4-24b (4)".  The SPD/RE Code Cross Reference Table included in the regulation stipulates that the RE code assignment will be based on the Department of the Army directive authorizing separation.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be changed because the 
RE-4 code he was assigned prohibits him from enlisting in the Army.

2.  Evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

3.  By regulation, the RE code assigned to members separated by reason of JFM, for Disability, Existed Prior to Service, PEB is RE-4.  The RE-4 code assigned the applicant was and remains valid based on the authority and reason for his separation.  

4.  The applicant’s contention regarding service achievements and conduct were considered.  However, service conduct alone is not a basis for upgrading his reentry code.


5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 September 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 September 1997.  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 ___  _PHM___  _GJP___  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
AR20060014951
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1994/98/15
DISCHARGE AUTHORITY
AR 635-200//RE 4
DISCHARGE REASON
Disability, EPTS
BOARD DECISION
DENY
REVIEW AUTHORITY
Dir
ISSUES         1.

2.

3.

4.

5.

6.