IN THE CASE OF:	  

		BOARD DATE:	        18 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017459 


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 separation code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "JFV" to "JDR" and that his reentry eligibility (RE) code be changed from a "3" to a "1."

2.  The applicant states that when he enlisted, he received tests that showed that his left kidney was non-functioning and he was ultimately discharged based on that conclusion.  However, on 17 October 2008, he received a test which is much more accurate that the test he received when he enlisted and it shows that his left kidney is functioning, which indicates that the previous conclusion was in error.  He also states that after years of no kidney problems and with the lack of financial ability, it has taken years for him to afford a private test.  He continues by stating that his separation and RE codes were based on that error and should be changed.

3.  The applicant provides a copy of a DD Form 214 and a medical report from Signet Diagnostics in Orange Park, Florida.

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 enlisted in the U.S. Army Reserve (USAR) in Miami, Florida, on 17 January 2001 for a period of 8 years under the delayed entry program.  He enlisted in the Regular Army on 24 January 2001 for a period of 4 years, training under the airborne infantry training option and a cash enlistment bonus ($18,000).

3.  He completed all of his training at Fort Benning, Georgia, and was transferred to Fort Bragg, North Carolina, for assignment to the 325th Airborne Infantry Regiment.

4.  On 17 September 2001, the applicant underwent an ultrasound-main at Womack Army Medical Center (WAMC) which indicated that the applicant's right kidney was normal and that his left kidney was not documented on ultrasound examination.

5.  On 1 October 2001, he underwent a computed tomography (also known as a CAT scan) which indicated that the applicant's left kidney was remarkably atrophic with a thin rim of enhancing cortex.  The right kidney showed findings of secondary compensatory hypertrophy with a craniocaudal length of approximately 13cm.

6.  On 28 November 2001, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-17, for other designated physical or mental conditions.  He further specified that the reason for his actions was the applicant's being diagnosed as having only one functioning kidney which interfered with his ability to perform his military duties.  The applicant concurred with the proposed separation action.

7.  On 28 November 2001, the appropriate authority approved the recommendation for separation and directed that he be furnished an Honorable Discharge Certificate.

8.  On 7 December 2001, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, due to a physical condition, not a disability.  He was issued a separation code of "JFV" and an RE code of "3."
9.  The document submitted by the applicant regarding the question of the functioning of his left kidney indicates that the left kidney shows delayed opacification.  It is hypoplastic and measures 6.9 centimeters.  The right kidney measures 16.5 centimeters in length.  The impression was that the applicant had a hypoplastic left kidney with compensatory hypertrophy of the right.  Function of the left kidney is slightly delayed and diminished compared to the right.

10.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned separation and RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the 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.

11.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office.

12.  Army Regulation 635-5-1 (Separation Program Designator Codes), provides the separation codes that are to be entered on the DD Form 214.  It provides, in pertinent part, that separation code "JFV" will be used for enlisted personnel being separated under the provisions of Army Regulation 635-200 due to a physical disability - not a disability.  There is no listing for a separation code of "JDR."

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  The applicant was separated under the provisions of Army Regulation 635-200 and was properly issued an RE code of RE-3 in accordance with the applicable regulations.

3.  The document submitted by the applicant clearly shows that his left kidney is dramatically smaller than his right kidney and that it is operating at a diminished capacity.  The report essentially confirms the diagnoses made at WAMC that led to his administrative discharge.

4.  The applicant’s contentions have been noted.  However, there are procedures whereby the applicant can apply to a local recruiter for a waiver of his RE code if he is, in fact, physically qualified and the needs of the Army at the time justify his return to service.

5.  Additionally, there is no separation code of "JDR" and his current separation code correctly reflects the basis for his separation.  Therefore, in the absence of evidence to show that he was not properly separated, there appears to be no basis to grant his request.

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 that 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)                                         AR20080017459



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ABCMR Record of Proceedings (cont)                                         AR20080017459



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