IN THE CASE OF:	  

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090019042 


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 reconsideration of the Board's denial of his request to change his separation and reentry eligibility (RE) codes on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 7 December 2001.

2.  The applicant states, in effect, he was found medically qualified to serve during his separation examination.  Therefore, his RE code should be a 1 or 2.  He says the Record of Proceedings stated he was issued an RE code of 3 in accordance with applicable regulations.  As he was medically qualified to serve, the Board is in error.  Additionally, he refutes the statement that Signet Diagnostics and Womack Army Medical Center (WAMC) had the same findings.  The applicant asserts that the only agreement between the two reports is the size of his kidney, which the applicant states is irrelevant.  Signet Diagnostics found his left kidney as hypoplastic meaning his kidney is underdeveloped.  The report did not show his kidney as non-functioning.  The military doctor at WAMC in 2001 found his left kidney to be atrophic meaning it was wasting away or decreasing in size.   

3.  The applicant continues by saying he was discharged from the Army because he had a non-functioning kidney.  However, civilian medical tests now show his kidney functions.  Therefore, he should now be qualified to serve.  The erroneous conclusion in the Record of Proceedings has stripped him of his right to serve his country.  He asks the Board to reconsider its view on the finding that atrophic and hypoplastic are "essentially the same."  For if the Army knew his kidney was functioning, he would never have been discharged. 
4.  The applicant provides a copy of DD Form 2808 (Report of Medical Examination) dated 7 November 2001, the Record of Proceedings for Docket Number AR20080017459, and a personal letter as new evidence in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080017459, on 18 February 2009.

2.  The applicant's personal letter and report of medical examination are the new evidence requiring the Board to reconsider his request.  

3.  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 also underwent an initial enlistment medical examination on this date which found him medically qualified for service to include airborne training.

4.  He enlisted in the Regular Army on 24 January 2001 for a period of 4 years enlisting for specific training under the airborne infantry training option and he received a cash enlistment bonus of $18,000.

5.  The applicant completed basic and advanced individual training meeting the qualification standards for military occupational speciality 11B (Infantryman).  Additionally, he completed basic airborne training at Fort Benning, GA.  He was transferred to Fort Bragg, NC, for assignment to the 325th Airborne Infantry Regiment.

6.  The applicant's complete military medical records were not available for the Board's review.  Summarizing from ABCMR Docket Number AR20080017459, Record of Proceedings, the applicant had an ultrasound-main at WAMC on 
17 September 2001.  The results were his right kidney was normal and his left kidney was not documented on ultrasound examination.

7.  Later on 1 October 2001, the applicant had a computer tomography (also known as a CAT scan) which indicated his 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.

8.  The applicant's commander notified him on 28 November 2001 that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-17.  The reason for separation under this paragraph is for other designated physical or mental conditions, not a physical disability.  He further specified that the reason for his proposed separation was the applicant's diagnosis of one functioning kidney.  The commander said this medical diagnosis interfered with the applicant's ability to perform his military duties.  

9.  The commander informed the applicant that: 

* he had the right to counsel and/or a civilian counsel at no expense to the government
* he could present written statements on his behalf
* he could obtain copies of all documents sent to the separation authority
* he was required to undergo a medical examination in accordance with Army Regulation 40-501
* recoupment of the unearned portion of his enlistment bonus was required by law

10.  The applicant declined the opportunity to seek assistance from counsel on 28 November 2001.  He requested an expeditious discharge saying he had been afforded the opportunity to submit additional statements in his behalf.  Additionally, he waived the 7-day period post notification before making his decision requesting separation.  

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

12.  The applicant's separation packet was found legally sufficient on 29 November 2001.

13.  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."

14.  The applicant submitted with his initial application a medical report from Signet Diagnostic Imaging Service, dated 17 October 2008.  This medical report shows the applicant's left kidney has delayed opacification.  It is hypoplastic and measures 6.9 centimeters.  In comparison, his right kidney measures 16.5 centimeters in length.  The medical impression noted by the attending physician shows the applicant has a hypoplastic left kidney with compensatory hypertrophy of the right.  Additionally, the doctor noted the functioning of the left kidney is slightly delayed and diminished compared to the right.

15.  In support of his application, the applicant provides the results of a military medical separation examination conducted on 7 November 2001.  Item 74a (Examinee/Applicant) of the DD Form 2808 shows the applicant is qualified for service with no significant or disqualifying defects noted during the examination.    

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, Chapter 61 and Department of Defense Directive 1332.18 setting forth policies, responsibilities and procedures that apply in determining whether a Soldier is unfit because of a physical disability to reasonably perform the duties of his military occupational specialty, grade and rank.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier from the service.  The primary objective is to maintain an effective and fit military organization with maximum use of available manpower.  Additional objectives include prompt disability processing protecting the rights of the Soldier and Government and benefits for Soldiers whose military service is terminated because of a service-connected disability. 

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Chapter 5, paragraph 17 of this regulation shows that commanders may approve separation on the basis of other physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-40 that potentially interfere with assignment to or performance of military duties.  Such conditions may include, but are not limited to chronic airsickness, chronic seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, personality disorders.  Recommendations for separation must be supported by documentation confirming the existence of the physical or mental condition.  Prior to separation, the regulatory notification procedures of Chapter 2 will be utilized. 

18.  Army Regulation 635-200 states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) establishes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-6 included a list of the Regular Army RE codes:

	a.  RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

19.  The Separation Program Designator Code (SPD)/RE Code Cross-Reference Table, dated October 2000, shows that the appropriate RE code for the SPD code of "JFV" is RE-3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his medical separation examination resulted in a finding of qualified for service.  Therefore, he argues he should have an RE code of 1 or 2, not 3 as shown on his DD Form 214.  An RE code of 3 is for Soldiers who are not fully qualified for reentry or continuous service.   

2.  It is acknowledged that the examining physician found the applicant medically qualified for service.  However, earlier military medical reports, not available to this Board, show the applicant had one kidney that was significantly smaller in contrast to a normal kidney and that its functionality was impaired and potentially nonfunctional.  

3.  However, a fact overlooked by the applicant is that he was separated for a physical condition that was not a disability.  Therefore, his argument that his kidney problem isn't medically disqualifying has no bearing on this case. 

4.  The applicant was counseled by his chain of command and informed that based on the impaired or nonfunctional kidney the commander's recommendation to superiors was separation.  As an airborne infantryman, the applicant would be participating in airborne operations and tactical maneuvers wearing weighted individual load bearing gear, his assigned weapon, and parachute equipment.  Airborne operations and tactical maneuvers are inherently dangerous with the potential for serious injury to a limb or internal organs.  As the commander was aware of the applicant's smaller and potentially nonfunctional kidney, he had a responsibility to protect the applicant from physical harm and to protect the interests of the Government. 

5.  Therefore, the commander appropriately notified the applicant that he was considering recommending separation for a physical condition that was not a disability.  The applicant was afforded an opportunity to seek the advice of legal counsel after he was notified.  Based on the evidence of record, the applicant declined consultation with legal counsel and agreed with the commander's separation recommendation.  He was afforded an opportunity to submit statements on his behalf; he declined requesting an expeditious discharge.    

6.  Additionally, the applicant contends the initial Record of Proceedings used terminology such that the two medical evaluations were "essentially the same."  While the applicant's frustration and concern describing his kidney and its functionality is understandable, the fact remains that one kidney is significantly different in size than the other.  The differentiation in the size of the kidney organ is known, what is unclear is that in 2001 military medical authorities indicated the applicant's kidney did not function.  Yet in 2008, a civilian physician during a CAT scan determined the kidney was functional, but smaller in size and diameter in comparison to the other.

7.  Based on this anomaly, a kidney that was not proportional to the other and of questionable functionality, the applicant's commander rightly was concerned for the health and safety of the applicant.  Based on the best available information presented to him at the time, the commander recommended separation and the applicant concurred requesting an expeditious discharge.  Accordingly, the applicant was discharged for a physical condition that was not a disability.

8.  The evidence of record shows the applicant's RE code was assigned based on his discharge under the provisions of paragraph 5-17, Army Regulation 
635-200 due to physical condition, that was not a disability.  The only valid SPD code permitted for paragraph 5-17 is "JFV" and its appropriate RE code associated with this type of SPD code at the time of his discharge was an RE code of 3.  

9.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, he is not entitled to relief.  



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 to amend the decision of the ABCMR set forth in Docket Number AR20080017459, dated 18 February 2009.




      _______ _   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)                                         AR20090019042





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ABCMR Record of Proceedings (cont)                                         AR20090019042



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