IN THE CASE OF:	  

		BOARD DATE:	    3 June 2010

		DOCKET NUMBER:  AR20090020163 


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, correction of appropriate military records to show a reentry eligibility (RE) code which would allow enlistment.

2.  The applicant states he is physically fit for duty and wants to reenlist.

3.  The applicant provides no additional documentary evidence in support of this 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 records show he enlisted in the Regular Army on 15 November 2000.  He did not complete basic training.
3.  While the applicant's discharge packet is not available, his DD Form 214 shows he was discharged from active duty on 23 January 2001 with an uncharacterized character of service after completing 2 months and 9 days of active service.  His DD Form 214 shows he was assigned a separation program designator (SPD) of "JFW," an RE code of "3," and a narrative reason for separation of "failure to meet procurement medical fitness standards."

4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 states that:

	a.  Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty may be separated.  Such conditions must be discovered during the first 6 months of active duty.  Such findings will result in an entrance physical standards board. This board must also be convened within the Soldier's first 6 months of active duty.

	b.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by an appropriate military medical authority within 6 months of the Soldier’s initial entrance on active duty for the  Regular Army that—
	
   (1)  Would have permanently or temporarily disqualified the Soldier for 
entry into the military service or entry on active duty had it been detected at that time.

   (2)  Does not disqualify the Soldier for retention in the military service per 
Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  As an exception, Soldiers with existed prior to service conditions of pregnancy or human immunodeficiency virus (HIV) infection (Army Regulation 600-110) will be separated.

	c.  A Soldier who is found after entry on active duty not to have been qualified under procurement medical fitness standards at the time of enlistment may request to be retained on active duty subject to the conditions listed below.  No Soldier has a right to be retained under this paragraph.  Soldiers not retained will be processed for separation.  Soldiers will not be retained under this paragraph unless both conditions below are met:

   (1)  The separation authority cited in paragraph 1–19c determines, after 
considering the proceedings of an Entrance Physical Standards Board, that the Soldier's disqualifying condition will not prevent the Soldier from performing satisfactorily throughout his/her period of enlistment in the military occupational specialty for which he/she is being trained or in another military occupational specialty based on the Soldier’s medical condition.

   (2)  The Soldier signs a statement requesting to complete the period of 
service for which enlisted.

5.  Army Regulation 635-5-1, table 2-3 indicates the SPD code of "JFW" denotes failed medical/physical procurement standards.

6.  Pertinent Army regulations provide 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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve Components.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes.  This regulation states that an RE code of "1" applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  RE code of "3" applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.

7.  Human Resources Command - Alexandria, VA (HRC - Alexandria) publishes a cross-reference table of SPD and RE codes.  The cross-reference table shows that an SPD code of "JFW" was assigned an RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  While the applicant's discharge packet is not available, his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards.

2.  The Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that the applicant’s RE code and reason for separation were administratively correct and in conformance with applicable regulations at the time of his discharge.

3.  While it is commendable that the applicant desires to reenter military service, there is no basis for changing a properly assigned RE code.



4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers.

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)                                         AR20090020163



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ABCMR Record of Proceedings (cont)                                         AR20090020163



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