IN THE CASE OF:	  

		BOARD DATE:	        13 AUGUST 2008

		DOCKET NUMBER:  AR20080006438 


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 that the reentry eligibility (RE) code currently reflected on his Certificate of Release or Discharge (DD Form 214) be changed from RE-4 to RE-1.

2.  The applicant states, in effect, that in 1990, he requested to be reclassified into his secondary military occupational specialty (MOS) of 88M (motor transport operator).  He states that somehow, he ended up getting a medical discharge.  He states that no doctor ever said anything about him not being able to perform his job.  He states that he would like to have his RE code changed so that he can reenter the Army on active duty.

3.  The applicant provides in support of his application, a copy of his DD Form 214.

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.  After completing 4 years, 2 months and 23 days of net active service in the United States Army in a cannon crewmember MOS, the applicant reenlisted in the Regular Army (RA) on 28 February 1984, in Chicago, Illinois, for 3 years, in the pay grade of E-4.  He reenlisted in the RA for 3 years on 2 December 1986.

3.  On 9 January 1988, the applicant was placed on a permanent physical profile due to chronic muscle strain of his left leg.  However, his medical condition did not prevent him for performing any of his normal activities.

4.  On 2 January 1989, the applicant's commanding officer (CO) submitted his evaluation on the applicant.  In his evaluation, the CO stated that the applicant could not perform his duties in his Primary MOS and that he was on a permanent profile which required no lifting over 40 pounds and no running.  The CO stated that the applicant's MOS was physically demanding and that he had been enrolled in a physical therapy program for the past 2 years.  The CO stated that the applicant had reinjured himself three times since he started therapy and that there was a high risk of injury every time he went into the field.  The applicant's CO recommended that he be reclassified in a different MOS to prevent further damage to his injury.

5.  On 10 January 1989, an MOS Medical Retention Board (MMRB) convened to determine the applicant's fitness to remain in his MOS.  The board found the applicant was not performing duties in his Primary MOS of cannon crewmember, rather he was in a special duty position at the post locator.  The board recommended that he be placed on a probationary status for 180 days.

6.  The applicant's CO was notified of the MMRB's decision on 13 February 1989 and he was instructed to initiate coordination with the Medical Treatment Facility to monitor his revaluation.  His CO was also instructed to observe and evaluate the applicant throughout the 180 day probationary period and if progress was not noted, the applicant at any point could be referred back to the MMRB for final determination.

7.  On 26 July 1989, an MMRB convened to determine the applicant's fitness to remain in his Primary MOS.  The board found the applicant was not performing duties in his Primary MOS of cannon crewmember, rather he was working as the unit repair and upgrade noncommissioned officer.  The MMRB recommended that the applicant be reclassified to a less physically demanding MOS.  The appropriate authority approved the findings of the MMRB on 28 July 1989.

8.  In a message dated 25 January 1990, from the Total Army Personnel Command, the Commander, Personnel Command and the applicant's chain of command were notified that he was being discharged immediately, with severance pay, under the provisions of Army Regulation 635-40 and per recommended approval by the Physical Evaluation Board (PEB).  The message indicates that the applicant was assigned a 10 percent service connected disability rating by the PEB.  The message also indicates that his discharge would be effective no later than 8 February 1990.

9.  On 29 January 1990, Orders Number 18-9 was published reassigning the applicant to the United States Army transition point and discharging him from the Army, with severance pay, effective 8 February 1990, with a 10 percent service connected disability rating.

10.  On 8 February 1990, the applicant was discharged with severance pay, under the provisions of Army Regulation 635-40, paragraph 4-24e(3), by reason of physical disability.  He was assigned an RE-4 code.

11.  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 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.

12.  An RE-3 applies to persons not qualified for continued Army Service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and Army Regulation 635-200.  A waiting period of 2 years from separation is required before a waiver may be submitted.  An RE-4 applies to persons with a non-waivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show 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.

2.  The Board has noted the applicant’s contentions.  However, according to his records, he was discharged under the provisions of Army Regulation 635-40, by reason of a physical disability and he was assigned an RE-4 code, which means that he was not qualified for continued service at the time of his discharge.  
3.  The applicant was assigned an RE code to reflect his eligibility for reenlistment at the time of his discharge.  He has provided no evidence to show that the RE code that was assigned to him is incorrect or unjust, and his current desire to enlisted in the Army is not a sufficient justification to warrant the relief requested.  Therefore, in the absence of evidence to the contrary; it must be presumed that the RE-4 code that is currently reflected on his DD Form 214 is correct.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        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)                                         AR20080006438



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ABCMR Record of Proceedings (cont)                                         AR20080006438



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