IN THE CASE OF:	  

		BOARD DATE:	       21 July 2009 

		DOCKET NUMBER:  AR20090003884 


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 eligibility (RE) code.

2.  The applicant states, in effect, he received an RE-3 code which he needs changed to RE-1 because the Military Entrance Processing Station (MEPS) will not grant a waiver and he has received letters from different physicians confirming he never had the condition he was diagnosed with by military medical personnel.

3.  The applicant provides medical evaluation board (MEBD) records and three doctor's letters 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 military record shows he enlisted in the Regular Army and entered active duty on 27 January 2004.

3.  On 29 March 2004, while the applicant was still in training, an MEBD diagnosed him with right leg exertional rhabdomyolysis and determined this condition existed prior to service (EPTS).  The MEBD recommended the applicant's case be referred to a physical evaluation board (PEB).  In the DA Form 3947 (MEBD Proceedings), the applicant checked the box in item 15 that indicated he did not desire to continue on active duty and he agreed with the findings of the MEBD in item 24 (Action By Patient).

4.  On 7 April 2004, the applicant requested expeditious discharge by reason of physical disability based on the findings and recommendations of the MEBD, which were that he was unqualified for retention in military service because of an EPTS physical disability.  He confirmed that he had been fully informed and understood he was entitled to the same consideration and processing as any other member of the Army separated for physical disability.  He further acknowledged his understanding that this included consideration of his case by the adjudication system established by the Secretary of the Army for processing disability separations.  The applicant elected not to exercise this right and acknowledged that the Department of Veterans Affairs (VA) would determined his entitlement to VA benefits.  He finally acknowledged that he understood that if his request for discharge was approved, he would be separated by reason of EPTS physical disability.  The applicant authenticated this request with his signature and it was witnessed by the PEB Liaison Officer.

5.  On 13 April 2004, the separation authority approved the applicant's request for expeditious discharge and on 26 April 2004 the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge confirms he was separated in the rank of private/E-1 under the provisions of paragraph 5-4, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of "disability, existed prior to service - medical board."  It further confirms that he completed a total of 3 months of active military service.  It also confirms his service was described as "uncharacterized" and that he was assigned a separation program designator (SPD) code of KFN and an RE code of 3 based on the authority and reason for his separation.

6.  The applicant provides three doctor's statements that indicate he is in good health, that there are no signs of rhabdomyolysis, and he should be considered for reenlistment in the Army.

7.  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.

8.  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.  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-3 applies to persons who have a waivable disqualification.  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.

9.  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-3 code should be upgraded to an RE-1 code because the MEPS will not grant a waiver of his physical disqualification was carefully considered.  However, by regulation, RE-3 is the proper code to assign to members who are discharged under the provisions of chapter 5, Army Regulation 635-40, by reason of EPTS disability.

2.  The evidence of record confirms the applicant voluntarily requested expeditious discharge under the provisions of chapter 5, Army Regulation 
635-40, after he agreed to the findings of the MEBD that he suffered from an EPTS condition and declined further consideration of his case through the PDES. 
It is presumed that his medical condition was diagnosed by competent military medical authorities.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. Further, he was properly assigned an SPD code of KFN and an RE-3 code based on the authority and reason for his separation in accordance with the governing regulation.  Therefore, the RE-3 code was and remains valid.  As a result, there is an insufficient evidentiary basis to support a change to the RE code at this time.

3.  It appears that a waiver of the applicant's medical disqualification was requested by recruiting personnel, but has been denied based on his failure to obtain medical clearance.  The applicant is advised that the RE code is simply an administrative code assigned based on the authority and reason for discharge and a change to this code alone would not automatically result in him being medically cleared for enlistment/reenlistment.  Notwithstanding the doctor's letters he provides, medical clearance for entry into service is based solely on the results of entrance physical examinations conducted by proper medical authorities, and is not an administrative action dictated by an RE code assignment.  As a result, a change to the applicant's RE code would not result in a change to the medical examination results, which appear to be the reason his waiver is being denied.

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)                                         AR20090003884



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003884



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1