IN THE CASE OF:	  

		BOARD DATE:	       11 December 2008

		DOCKET NUMBER:  AR20080016292


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 his DD Form 214 for the period from 14 August 2002 through 6 September 2002 be corrected by changing his reentry (RE) code from “3” to “1.”

2.  The applicant states he would like to join the Air Force, Coast Guard, or National Guard and requires the requested correction in order to do so.  He adds that he is a police officer and he is physically fit.

3.  The applicant provides, in support of his application:

	a.  A self-authored letter, dated 3 September 2008.

	b.  A letter from the Chief, Congressional and Special Actions Branch, Army Review Boards Agency to the applicant’s United States Senator, dated 22 September 2008.

	c.  A facsimile transmission with 28 pages, dated 19 September 2008, and consisting of a 17 September 2008 letter from his United States Senator to the Army Chief of Legislative Liaison; his DD Form 214; a 29 August 2002 memorandum recommending his separation for failure to meet procurement physical fitness standards; a DA Form 2823 (Sworn Statement), dated 24 August 2002; a 6 August 2008 document from Palmetto Primary Care Physicians; two documents from Charleston Cardiology, dated 27 July and 3 August 2004; a 

14 February 2008 LabCorp laboratory report; an electrocardiogram (ECG) test; a 24 April 2007 tuberculosis report; a 1 May 2007 Coastal Occupational Medicine Radiology Report; a 29 April 2008 laboratory result for platelets and mean platelet volume (MPV); a 29 April 2008 Concentra Medical Centers physical examination; an ECG test; and a document “Preplacement Examination,” dated 29 April 2008 with 7 pages.

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 complete service records are not available for this review.  Information contained herein is derived from a previous ABCMR Record of Proceedings (AR2003095898), dated 29 April 2004.

3.  The applicant enlisted in the Regular Army (RA) on 14 August 2002 and entered active duty.  He was assigned to Fort Jackson, SC to attend basic combat training.  

4.  On 6 September 2002, 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 after completing only 23 days of active military service.  There is no information concerning the nature of the medical condition which led to his discharge.

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 contains the policy for the separation of personnel who did not meet procurement medical fitness standards.  It states 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.  The 

regulation stipulates that Soldiers in an entry level status who are separated under the provisions of paragraph 5-11 will receive an uncharacterized description of service.

6.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the 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.  RE 1 and 2 permit immediate reenlistment if all other criteria are met.  RE-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 (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214.  It provides that Soldiers separated under the provisions of paragraph 5-11, Army Regulation 635-200 will be given an SPD code of “JFW” and an RE code of “3.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his RE code be changed to RE-1 in order to facilitate his enlistment in the Air Force, Coast Guard, or National Guard.

2.  The ABCMR recommends changes in military records to correct errors or injustice, if material error or injustice exists and that sufficient evidence of record exists to warrant correction.  The applicant has not demonstrated an error or injustice concerning the assignment of his RE-3 reentry code.

3.  The nature of the applicant’s disqualifying medical condition is not known.  However, shortly after his entry onto active duty, he was determined not to meet procurement physical fitness standards and he was separated under the appropriate regulation.  Regularity is presumed.

4.  The applicant’s RE code was correctly assessed at the time of his separation. Based upon the separation authority – paragraph 5-11, Army Regulation
635-200, and pertinent regulations pertaining to assignment of RE codes – the applicant’s RE-3 code is correct.


5.  The applicant’s state of medical fitness in 2008 has no bearing on the state of his medical fitness in 2004.  If the applicant can convince recruiting personnel that he meets procurement physical fitness standards, his RE-3 code may be waived and he may enlist; however, when he was discharged on 6 September 2004, his RE code was correct.

6.  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.


															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)                                         AR20080016292



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ABCMR Record of Proceedings (cont)                                         AR20080016292



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