IN THE CASE OF:	  

		BOARD DATE:	  19 March 2009

		DOCKET NUMBER:  AR20080018066 


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, an upgrade of his reentry (RE) code. 

2.  The applicant states, in effect, that 2 years after his discharge, he tried to reenter the military and passed all tests.  However, a medical sergeant at the Military Entrance Processing Station (MEPS) said he could not pass even though he had documentation from his doctor confirming he was in good condition.  He now requests change to his RE-4 (sic) code that will allow him to reenter the military.

3.  The applicant provides no additional documentary evidence in support of his 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 record shows that he enlisted in the Regular Army and entered active duty on 15 March 2000. 

3.  The applicant's record is void of a separation packet containing the facts and circumstances surrounding his discharge processing.  The record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for the applicant's discharge.

4.  The DD Form 214 issued to the applicant at the time of his discharge on
1 August 2000 shows he was discharged under the provisions of Chapter 5, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability, existed prior to service (EPTS) - medical board.  It further shows that based on the authority and reason for his discharge, the applicant was assigned a Separation Program Designator (SPD) code of KFN in Item 26 (Separation Code) and an RE code of 3 in Item 27 (Reentry Code).  

5.  Army Regulation 635-40 contains guidance on the Army's Physical Disability Evaluation System (PDES).  Chapter 5 contains guidance on the separation of enlisted members for non-service aggravated EPTS conditions when the Soldier requests waiver of a PEB evaluation.  

6.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (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, including RA RE codes.  RE-4 applies to persons who have a non-waivable disqualification.  RE-3 applies to persons who have a waivable disqualification.  

7.  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. 

8.  Army Regulation 635-5-1 (SPD 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.  It states, in pertinent part, that the SPD code KFN is the appropriate code to assign to Soldiers separated under the provisions of Chapter 5, Army Regulation 635-40, by reason of disability.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of KFN.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be upgraded to allow his reentry in the military because he passed all tests was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, RE-3 is the proper code to assign to members who are assigned an SPD code of KFN who are discharged under the provisions of Chapter 5, Army Regulation 635-40, reason of disability, EPTS.  

3.  The applicant's record is void of a separation packet containing the facts and circumstances surrounding his discharge processing.  However, it does contain a properly constituted DD Form 214 that identifies the authority and reason for his discharge, and this document carries with it a presumption of Government regularity.  Therefore, absent any evidence to the contrary or assertion of error by the applicant, it is concluded the applicant's discharge processing was accomplished in accordance with the applicable regulation, that all requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout the separation process.  

4.  Further, the properly constituted DD Form 214 on file in the applicant's record shows he was properly assigned an SPD code of KFN and an RE code of 3 based on the authority and reason for his separation in accordance with the governing regulation.  Therefore, the RE-3 code assigned at discharge was and remains valid.  As a result, there is an insufficient evidentiary basis to support a change to the RE code at this time. 

5.  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.

6.  The applicant incorrectly indicates in his application that he received an RE-4 code.  The evidence of record confirms he was in fact assigned an RE-3 code at the time of his discharge, as evidenced by his DD Form 214.  RE-4 applies to persons who have a non-waivable disqualification, while RE-3 applies to persons who have a waivable disqualification.  Therefore, although the Board is recommending no change to his RE code, if he desires to reenter the military, he should contact a local recruiter to determine his eligibility.  Those individuals can best advise him on the needs of the military service; in addition, to waiver processing procedures for both his RE code and medical condition.  

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)                                         AR20080018066



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ABCMR Record of Proceedings (cont)                                         AR20080018066



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