IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080010372 


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 of "3" be changed to a more favorable code in order for him to reenter the Armed Services.

2.  The applicant states, in effect, that the medical review board (sic medical evaluation board [MEB]) at Fort Sam Houston, Texas, terminated his active duty service based on the medical diagnosis of "Reiter's Syndrome"; however, this is incorrect based on medical evaluations by two separate civilian rheumatologists.  The applicant adds that his objective is to serve with the United States Air Force (USAF) Reserve.  Based on the incorrect diagnosis of "Reiter's Syndrome," the USAF Reserve Command Surgeon could not approve his entry.  Exact quote "In accordance with AFI (AF Instruction) 36-2005, Table 2.2, Rule 18, applicants are ineligible for appointment if they were discharged for physical disability.  The applicant states that his DD Form 214 (Certificate of Release or Discharge from Active Duty) show that he was separated from the Army in accordance with Army Regulation 635-40, paragraph 4-24b(3), disability, severance pay, with a Separation Code of "JFL" and a RE Code of "3."  Note:  RE Code 3 – Individuals who are not qualified for continued Army service."

3.  The applicant adds that he has passed the USAF flight physical in the past year, without limitations, and has two separate civilian medical clearances that clearly state he does not have "Reiter's Syndrome."  He was instructed by the USAF Reserve and his local Congressman to submit a DD Form 149 (Application for Correction of Military Records) to have item 27 (Reentry Code), of his DD Form 214, properly adjusted to reflect his eligibility to reenter the Armed Services. 
4.  The applicant provides a copy of his DD Form 214, two letters from civilian physicians, a copy of a letter from the command surgeon of the AF Reserve Command (AFRC), and a copy of his resume in support of his request.  

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 he enlisted in the Regular Army on 17 August 1982.  He was trained as a medical specialist, in military occupational specialty (MOS), 91B.  He was promoted to staff sergeant (SSG/E-6) effective 1 August 1989.

3.  The applicant's MEB and PEB (physical evaluation board) determinations are unavailable for review.

4.  All the documents containing the facts and circumstances surrounding the applicant's separation are not present in the available records.  However, his    DD Form 214 shows that on 1 September 1996, he was discharged under the provisions of Army Regulation 635-40, chapter 4, paragraph 4-24b(3), for disability, with severance pay, in the pay grade of E-6.  He was furnished an honorable discharge.  He had a total of 14 years and 15 days of creditable service.  He was issued an RE Code of "3" and an SPD (Separation Program Designator) Code of "JFL."

5.  The applicant provided a copy of a letter from a civilian physician, dated 13 February 2006.  The physician stated that the applicant was examined on 13 February 2006 and his history was reviewed.  He was completely asymptomatic and his examination was normal.  There was no evidence of Reiter's Syndrome or any other form of arthritis at that time.  He stated that the applicant could perform all the duties of a nurse in a military unit and should be physically capable of all physical testing that would be necessary for the military.
6.  The applicant provided a copy of another letter from a civilian physician, dated 4 October 2007.  The physician elaborated on the applicant's ankle injury in detail and about tests that were made and follow-up examinations that were conducted. The physician indicated he ordered several tests, such as the rheumatoid factor test and that all of the tests for rheumatologic disease were normal.  At the present time, the applicant had no evidence of any rheumatologic disease.  He had no evidence of reactive arthritis.  The diagnosis of Reiter's Syndrome was not used in rheumatologic practice any longer because of Reiter's affiliation with the Nazi party in Germany towards the end of his career; therefore, the diagnosis, essentially, did not exist.

7.  The applicant provided a copy of a letter from the Command Surgeon, AFRC. The surgeon states that his staff carefully reviewed the applicant's application for appointment in the AF Nurse Corps.  However, his request for appointment was denied for the following reasons:  In accordance with AFI 36-2005, Table 2.2, Rule 18, applicants were ineligible for appointment if they had been discharged for physical disability.  His DD Form 214 stated that he was separated from the Army in accordance with Army Regulation 635-40, paragraph 4-24b(3), disability, severance pay, with a Separation Code JFL and a RE Code of 3.  Individuals with a RE Code of 3 are not qualified for continued Army service.  The surgeon concluded that he appreciated the applicant's interest in the AFR and wished him success in his future endeavors.

8.  The applicant provided a copy of his resume.

9.  Army Regulation 635-40 provides the policy and procedure for evaluation of the physical fitness of Soldiers who may be unfit to perform their military duties because of physical disabilities.

10.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition of cases by the US Army Human Resources Command (AHRC) [formerly the Total Army Personnel Command (PERSCOM)] upon the final decision of the Physical Disability Agency (PDA).  It states that USAHRC will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USADPA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.




11.  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 (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 reentry codes, including RA RE codes.

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

13.  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 SPD 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 SPD code of "JFL" has a corresponding RE code of "3."

14.  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 SPD "JFL", as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is "disability, severance pay" and that the authority for discharge under this SPD is "Army Regulation 635-40, chapter 4, paragraph 
4-24b(3).  

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.

2.  The applicant's record is void of the facts and circumstances concerning the events that led to his discharge from the Army.  






3.  The applicant was discharged under the provisions of Army Regulation     635-40, chapter 4, paragraph 4-24b(3), for physical disability with severance pay. He was issued an SPD Code of "JFL" that has a corresponding RE Code of "3."  

4.  The applicant alleges that the MEB at Fort Sam Houston terminated his active duty based on the medical diagnosis of Reiter's Syndrome. The applicant’s MEB/PEB are unavailable for review by this Board.  

5.  The applicant's objective is to serve with the USAF Reserve; however, based on the diagnosis of Reiter's Syndrome, the USAF Command Surgeon would not approve his entry.  The Surgeon indicated that in accordance with AFI 36-2005, Table 2.2, Rule 18, applicants are ineligible for appointment if they were discharged for physical disability.  The applicant has provided no evidence, and there is none, to show that the MEB or PEB rendered an incorrect diagnosis at the time of his discharge from service.  

6.  It is apparent that the applicant wishes to reenter the Armed Services; however, his RE Code of "3" prevents him from reentering.  He has provided no evidence, and there is none, to support a change to his RE Code from RE "3" to a more favorable code.

7.  The RE Code of "3" applied to the applicant's DD Form 214 is consistent with the basis for his separation and in this case there is no basis to correct the existing code.

8.  The letters that were provided from civilian physicians that indicate the applicant has no evidence of rheumatologic disease, no evidence of reactive arthritis, and no evidence of Reiter's Syndrome or any form of arthritis at this time, were considered.  The letter from the Command Surgeon, AFRC, was also considered.  However, the letters are not sufficient to support a change in his 
RE Code.

9.  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.







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)                                         AR20080010372



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ABCMR Record of Proceedings (cont)                                         AR20080010372



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