IN THE CASE OF:	  

	BOARD DATE:	  22 JULY 2008

	DOCKET NUMBER:  AR20080005270 


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, that his reentry (RE) code and separation code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant essentially states that he should be given an RE code of 1 due to his current medical condition.  He also states that he was given an RE code of 3 and feels this is an injustice and would like it upgraded so he might be able to get back into the military.  He further states that he feels that his condition was well enough to stay in the military if he had been given a chance to apply his medical and mental conditions as a productive Soldier.  Additionally, he states he was also asked if he wanted to stay or get out of the military, and that he changed his mind to get back in if at all possible. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); DA Form 4707 (Entrance Physical Standards Board [EPSBD] Proceedings); and orders, dated 20 October 2004, which discharged him on 
28 October 2004 in support of this 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 military records show that he enlisted in the Regular Army on 
8 September 2004.  However, the applicant went before an EPSBD on 30 September 2004.  Although his complete service medical records are not available, the proceedings of the EPSB essentially show that the applicant was diagnosed with chronic low back pain and mild arthritis of the lumbar spine which existed prior to service and was not service-aggravated.  It should be noted that the applicant had the option of disagreeing with the EPSBD proceedings if he believed his condition did not exist prior to service and request that his case be returned to the medical approving authority for reconsideration.

3.  On 28 October 2004, the applicant was discharged accordingly.  The 
DD Form 214 that he was issued at the time of his discharge shows that he had completed only 1 month and 21 days of active Federal service.  Item 24 (Character of Service) of this document has an entry of “Uncharacterized,” and Item 25 (Separation Authority) of this document shows that the authority for his discharge was Army Regulation 635-200 (Enlisted Personnel), Paragraph 5-11.  Item 26 (Separation Code) of this document has an entry of "JFW," and item 27 (Reentry Code) has an entry of "3."  Item 28 (Narrative Reason for Separation) of this document has an entry of "Failure to Meet Procurement Medical Fitness Standards."  
 
4.  The applicant essentially stated that he should be given an RE code of 1 due to his current medical condition.  He also stated that he was given an RE code of 3 and feels this is an injustice and would like it upgraded so he might be able to get back into the military.  He further stated that he feels that his condition was well enough to stay in the military if he had been given a chance to apply his medical and mental conditions as a productive Soldier.  Additionally, he stated he was also asked if he wanted to stay or get out of the military, and that he changed his mind to get back in if at all possible. 

5.  Army Regulation 635-200, in effect at the time, provided the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides 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 entrance on active duty or active duty training or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3. The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry level status.  Entry level status is defined as the first 180 days of continuous active duty.

6.  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 and the United States 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 Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

7.  Army Regulation 635-5-1 (Separation Program Designator 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

8.  An SPD code of "JFW" applies to persons discharged for failure to meet medical/physical procurement standards.  The SPD/RE Code Cross Reference Table shows that an RE code of 3 is the applicable RE code assigned for individuals discharged for this reason.  The applicant’s RE code of 3 indicates that the he was separated from his last period of service with a disqualification which is waivable.

9.  Paragraph 4-5 of Army Regulation 601-210 provides, in pertinent part, that any applicant who was last separated or discharged from any Component of the U.S. Armed Forces for medical reasons with or without disability for enlistment into the Regular Army, United States Army Reserve, or Army National Guard will require a waiver.  This paragraph also provides the documents required for waiver consideration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code and separation code shown on his 
DD Form 214 should be changed.
2.  The applicant's desire to return to military service is commendable; however, 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.

3.  The applicant's RE and separation codes are based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on his failure to meet medical procurement fitness standards, and there is no basis upon which to change this reason.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

4.  However, the applicant is advised that he may be eligible for enlistment into the Armed Forces with a waiver.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210.  Therefore, it is recommended that the applicant contact his local recruiter.  The applicant is cautioned though that Army enlistment standards depend upon the needs of the Army at the time of application for enlistment, and that there is no inherent right by a former service member to be enlisted in the Army.  The Army chooses its enlistees from among those best qualified to meet the Army's requirements.  Therefore, if he is not at first successful, it is suggested that he periodically visit his local recruiting station so as to keep abreast of the changing recruiting needs of the Army.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants to thank the applicant for his interest in reentering the Armed Forces, and wishes him the best in his efforts to do so.




      ___        XXX                ___
                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)                                         AR20080005270



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ABCMR Record of Proceedings (cont)                                         AR20080005270



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