RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060015234 


	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.




	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 that his Reenlistment (RE) Code be changed from  RE-4 to RE-3P. 

2.  The applicant states that he believes that his DD Form 214 was incorrectly prepared to reflect a RE Code of RE-4 instead of RE-3P. 

3.  The applicant provides a copy of his DD Form 214. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 12 November 1969.  The application submitted in this case is dated 18 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 was inducted in Brooklyn, New York on 3 December 1968.  At the time of his induction he noted that he was in good general health, except for back and feet.  He was transferred to Fort Jackson, South Carolina to undergo his training and on 16 December 1968, he was referred to a foot clinic for flat feet.   

4.  He completed his basic training and remained at Fort Jackson for his advanced individual training (AIT) as a light weapons infantryman.  He continued to have trouble with his feet and was eventually issued a physical profile.  He completed his AIT and was transferred to Vietnam on 15 May 1969, where he served as a food inspection assistant.  

5.  On 25 August 1969, he submitted a request for a medical discharge under the provisions of Army Regulation 635-200, paragraph 5-5d, contending that his medical condition (flat feet) rendered him unfit for induction.  The applicant’s request was approved by the Department of the Army and on 12 November 1969, he was honorably discharged under the provisions of Army Regulation 635-200, chapter 5, due to a physical disability that existed prior to service (EPTS).  He had served 11 months and 10 days of active service and was issued a RE Code of RE-4.  

6.  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 601-280, in effect at the time, provided eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the USAR.  Chapter 1 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.  Army Regulation 601-210 is the regulation that currently governs RE Codes.    

7.  RE-4 applies to persons separated with a non-waivable disqualification and Army Regulation 601-280, in effect at the time, provided in Table 2-4, that personnel separated for physical disability – EPTS constituted a non-waivable disqualification.  RE-3P was not a valid RE Code used by the Army at the time the applicant was discharged nor is it a code used by the Army today.  However, other services (Navy, Coast Guard and Marine Corps) use RE-3P to denote discharge by reason of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.  

2.  The applicant was discharged by reason of a physical disability that existed prior to service and was deemed to have a non-waivable disqualification for further enlistment/reenlistment in accordance with the applicable regulation in effect at the time.  

3.  Accordingly, he was issued the proper RE Code of RE-4 for a non-waivable disqualification and he has failed to show through the evidence submitted and the evidence of record that his RE Code is incorrect.   

4.  The applicant’s contention that his RE Code should be changed to RE-3P has been noted and found to be without merit.  RE Code RE-3P is not a RE Code used by the Army and therefore is not applicable in his case.


5.  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.  

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 November 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 November 1972.  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

___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.




_____x_______
          CHAIRPERSON



INDEX

CASE ID
AR20060015234
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070410
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.100.0300
4/re code
2.

3.

4.

5.

6.