RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 July 2007
      DOCKET NUMBER:  AR20060015053


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John N. Sloane                |     |Chairperson          |
|     |Mr. William Blakely               |     |Member               |
|     |Mr. David K. Haasenritter         |     |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 of "4"
[actually an RE Code "3"] be changed.

2.  The applicant states, in effect, that he was discharged for medical
unfitness; however, the disability does not exist and never has.  He wishes
to reenlist to better serve this country.

3.  The applicant adds that the documents he is submitting in support of
his request are the records of a recent physical examination he had at
his own expense.  He adds that the physician is an officer in the United
States Air Force Reserve and National Guard; however, he does not know
his rank.

4.  In support of his request, the applicant provides a copy of his
examining physician's calling card and three pages from the physical
examination he recently underwent.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 March 1988, the date of his discharge.  The application
submitted in this case is dated 17 October 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 military records show he enlisted as a member of the
Regular Army and entered active duty on 25 February 1988.

4.  On 4 March 1988, the applicant's duty status was changed from "Present
for Duty" to "Hospital."

5.  On 7 March 1988, the applicant was evaluated by a Medical Evaluation
Board (MEB) and was diagnosed to have chondromalacia patella [softening and
degeneration of the tissue (cartilage) underneath the kneecap].  The
condition
was deemed to have existed prior to his service (EPTS), not to have been
incurred while entitled to base pay, and was not aggravated by service.
The examining board recommended the applicant be separated from the
military.

6.  The DA Form 3947, Medical Evaluation Board Proceedings, completed in
conjunction with the MEB shows the applicant did not desire to continue on
active duty under the provision of Army Regulation (AR) 635-40.

7.  On 7 March 1988, the applicant requested discharge for physical
disability reasons.  In his application for discharge, he stated he had
been informed that based on the findings and recommendation of the board,
he was considered unfit for retention in the military service for a
condition which had been found to have existed prior to his enlistment and
which was neither incident to nor aggravated by his military service.  The
applicant's request for discharge was sent to his commander under cover of
a memorandum of transmittal by the Physical Evaluation Board Liaison
Officer, US Army Medical Department Activity, Fort Bragg, North Carolina,
on the same date.

8.  The findings and the recommendation of the MEB were approved on 8 March
1988.  The applicant agreed with the board's findings and recommendation on
the same date.

9.  On 8 March 1988, the applicant was counseled by his unit commander and
advised he was initiating procedures to discharge him from service.  The
applicant acknowledged the counseling on the same date.

10.  On 8 March 1988, the applicant's commander recommended his separation
for physical disability reasons.  The applicant's battalion commander
supported the recommendation.  The recommendation was forwarded to the
special court-martial convening authority for a decision.

11.  Other documents, to include the special court-martial convening
authority's approval, are not available for the Board's review; however,
the record shows that on 12 March 1988, Orders 4-1 were published by the
80th Division (Training), Mobilization Army Training Center, Fort Bragg,
discharging the applicant from the Regular Army, under the authority of AR
635-40.

12.  On 9 March 1988, the applicant's duty status was changed from
"Hospital" to "Present for Duty."
13.  The applicant was discharged on 14 March 1988, under the provisions of
AR 635-40.  The applicant's character of service was described as, "Entry
Level Status."  He was given a separation code of "KFN" and a reenlistment
code,
"RE-3."  The narrative reason given for his discharge was, "Medically
Unfit."  On the day of his discharge, the applicant had completed 19 days
of creditable service.

14.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned reentry codes, based on
their service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army 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 reentry
codes, including RA RE codes.

15.  RE–4 applies to persons not qualified for continued service by virtue
of being separated from the service with non-waivable disqualifications.

16.  RE-3 applies to persons not qualified for continued Army service and
personnel who are discharged, but whose disqualification is waivable.

17.  RE-2 applies to Soldiers being separated before completing a contract
period of service whose reenlistment is not contemplated.

18.  RE-1 applies to persons completing their term of service (ETS) who are
considered qualified to reenter the Army.

19.  The SPD/RE Code Cross Reference Table provides instructions for
determining the RE code for Active Army Soldiers and Reserve Component
Soldiers separated for cause.  It also shows the separation code with a
corresponding RE code and states that more than one RE code could apply.
The Soldier’s file and other pertinent documents must be reviewed in order
to make a final determination.  The separation code of "KFN" has a
corresponding RE code of "3."

20.  Army Regulation 635-5-1, in effect at that time, prescribed 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 code "KFN", as shown on the
applicant's DD Form 214, is appropriate for discharge when the narrative
reason for discharge is "Medically Unfit."  The authority for discharge
under this SPD is "Army Regulation 635-40."
21.  The documents the applicant submitted in support of his application
have no reference to the applicant's pre-service medical condition of
chondromalacia patella and are centered specifically on his high
cholesterol readings.  The examining physician did state in the text of
his letter to the applicant, "I still see no reason that you could not be
back in the Army."

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was discharged under the
provisions of AR 635-40 due to a medical condition that rendered him
medically unfit for retention in the military service.  The medical
condition was found to have existed prior to his enlistment.  The medical
condition was neither incident to nor aggravated by his military service.

2.  When the applicant was advised he was not fit for retention in
military service, the evidence shows he agreed with the MEB's findings
and recommendation and applied for discharge from the service.

3.  The evidence shows the applicant was given a RE Code "3," and not a
"4," as he alleges, when he was discharged.  This RE Code is commensurate
with the reason and the authority for his discharge and he is not entitled
to a change of his RE Code.  The applicant is advised if he desires to
reenlist, he should seek the assistance of a recruiter.  The RE Code "3" is
waivable.

4.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise 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 14 March 1988; therefore, the
time for the applicant to file a request for correction of any error or
injustice expired on 13 March 1991.  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

___S___  ___DKH__  _WB_____  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. Sloane______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060015053                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070718                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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