IN THE CASE OF:	  

		BOARD DATE:	        24 MARCH 2009

		DOCKET NUMBER:  AR20080018526 


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 Reentry (RE) Code be changed to a code that will allow him to reenter the service.

2.  The applicant states that he was discharged from the Army in 2000 with an RE Code of "3" and he desires to rejoin the service.  He goes on to state that he has attempted to enlist and he keeps getting the runaround.  He also states that he is in perfect health and he had no problems until he had to work with fuels and began getting headaches from the fumes.  He further states that he desires a second chance to serve his country in a specialty that fits him. 

3.  The applicant provides, in support of his application, copies of a self-authored letter of explanation, undated; his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an ending date of 26 July 2000; a Narrative Summary for Medical Board, dated 13 June 2000; and his request for separation and waiver of physical evaluation board (PEB) evaluation, dated 13 June 2000.

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 available records, though somewhat incomplete, show that the applicant enlisted in the U.S. Army Reserve (USAR) on 11 February 2000, for a period of
8 years and training as a petroleum laboratory specialist.  He was ordered to initial active duty for training (IADT) on 2 March 2000.  He completed his basic training at Fort Benning, Georgia and was transferred to Fort Lee, Virginia to undergo his advanced individual training.

3.  The facts and circumstances surrounding the applicant's administrative separation are not present in the available records.  However, the Narrative Summary for Medical Board provided by the applicant with his application indicates that he informed the examining physician that he had a history of chronic migraine headaches diagnosed as a child and despite taking medications for the headaches, they were still occurring about three times a week.  He indicated that they were always frequent and that he was having difficulty completing his work.  He also indicated that the symptoms are irritated by the sun and he had failed his military occupational specialty (MOS) course work due to an inability to concentrate.  The examining physician opined that the applicant suffered from chronic reoccurring migraine headaches that existed prior to service (EPTS) and recommended that he be evaluated by an EPTS board in accordance with Army Regulation 40-501 (Standards of Medical Fitness). 

4.  On 13 June 2000, the applicant submitted a request to his commander requesting separation and waiver of a PEB Evaluation.  He indicated that the Medical Evaluation Board (MEB) found him unqualified for retention in the military due to a physical disability that was found to have existed prior to service and that his disability was neither incident to nor aggravated by his military service.  He further elected not to exercise his right to appear before a PEB and indicated that in doing so, he would be separated by reason of disability, EPTS.

5.  His DD Form 214 shows that he was discharged on 26 July 2000, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5, due to disability, EPTS-Medical Board.  He had served 4 months and 25 days of total active service, with service uncharacterized.  He was issued a separation program designator (SPD) code of "KFN" and an RE Code of "3".

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 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.

7.  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 of KFN is the appropriate code to assign to Soldiers separated under the provisions of Chapter 5, Army Regulation 635-40, by reason of disability, EPTS.  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.  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.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.

3.  The applicant was separated under the provisions of Army Regulation 635-40, chapter 5, by reason of disability, EPTS-Medical Board with an SPD code of "KFN."  Therefore, he was properly issued an RE Code of RE-3 in accordance with the applicable regulations.

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.



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)                                         AR20080018526



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ABCMR Record of Proceedings (cont)                                         AR20080018526



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