IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080005166 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a change to his reentry (RE) code of RE-3.   

2.  The applicant states, in effect, the reason for his discharge is not as serious as described in Army medical records.  

3.  The applicant provides his separation document (DD Form 214) and a partial Entrance Physical Standards Board (EPSBD) Proceedings packet in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 30 December 2003.  
3.  On 27 January 2003, while the applicant was in basic combat training, an EPSBD convened to consider his case at Fort Sill, Oklahoma.  The EPSBD determined the applicant's diagnosed condition was "symptomatic Pes Cavus," and based on this condition, he did not meet medical fitness standards for enlistment or induction.  The EPSBD recommended he be evaluated by a medical evaluation board (MEB) to determine if he should be separated.  His record is void of the MEB proceedings regarding separation processing.  

4.  On 12 February 2004, the applicant was separated under the provisions of Paragraph 5-11, Army Regulation 635-200, by reason of failure to meet procurement medical fitness standards.  The DD Form 214 he was issued at the time confirms that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of JFW and an RE code of RE-3.  The applicant authenticated the DD Form 214 with his signature in Item 21 (Signature of Member Being Separated) on the date of her separation.  

5.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the Army's enlisted administrative separation policy.  Paragraph 5-11 contains guidance on the separation of members who do not meet procurement medical fitness standards  It states, in pertinent part, that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty may be separated.  Such conditions must be discovered during the first 6 months of active duty.  It further states that such findings regarding Soldiers who were not medically qualified under procurement medical fitness standards will result in an EPSBD, which must be convened within the Soldier's first 6 months of active duty, and takes the place of the regulatory notification procedure required for separation.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by an appropriate military medical authority within 6 months of the Soldier's initial entrance on active duty that would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time.  It further states that these conditions do not disqualify the Soldier for retention in the military service, and that a Soldier who is found after entry on active duty not to have been qualified under procurement medical fitness standards at the time of enlistment may request to be retained on active duty.


6.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (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-4 applies to persons who have a nonwaivable disqualification.  RE-3 applies to persons who have a waivable disqualification.  

7.  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.  It states, in pertinent part, that the SPD code JFW is the appropriate code to assign to Soldiers separated under the provisions of Paragraph 5-11, Army Regulation 635-200, by reason of failure to meet procurement medical fitness standards.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JFW.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be changed because his condition is not as serious as it is portrayed in his medical records was carefully considered.  However, this factor is not sufficiently mitigating to support a change to his RE code.  

2.  By regulation, RE-3 is the proper code to assign to members who are assigned an SPD code of JFW, and who are separated based on a failure to meet procurement medical fitness standards.  The evidence of record contains a properly constituted DD Form 214 that shows the applicant was discharged under the provisions of Paragraph 5-11, Army Regulation 635-200, by reason of failure to meet procurement medical fitness standards, and the he was assigned a SPD code of JFW and an RE code of 3.  This separation document carries with it a presumption of Government regularity.  

3.  The record confirms the applicant authenticated the DD Form 214 with his signature on the date of his discharge.  In effect, his signature was his verification that the information contained on the separation document, to include the 
RE code entry, was correct at the time the separation document was prepared and issued.  Therefore, absent evidence to the contrary, it is presumed the 
RE-3 code assigned was and remains valid.  As a result, there is an insufficient evidentiary basis to support a change to the RE code at this time.  Further, there is no evidence that the applicant requested or pursued retention upon discovery of his medical condition, which was his option at the time.  

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 although no change to his RE code is being recommended, he still has an opportunity to enlist.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, a waiver of the disqualification is allowed.  Therefore, if he desires to enlist, he should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of RE codes. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x ____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      ________x_______________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005166



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ABCMR Record of Proceedings (cont)                                         AR20080005166



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