IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100016854 


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 his reentry eligibility (RE) code to a code that will allow him to enlist.

2.  The applicant states:

* He believes he is able to serve in the Army and that he is very capable of completing the exercises and the tasks he may be assigned
* It is the opinion of his physician that he can serve in the Army if he wishes to do so
* He has traveled to the Army Board for Correction of Military Records (ABCMR) once before; however, he was unprepared and he did not know the procedures
* When he arrived at the ABCMR, he had hopes to be evaluated by a medical officer to prove he is ready to serve in the Army
* He received the Board’s previous decision which was not favorable and since then he has been cleared to serve in the Army, although with risk
* He has been running, stretching, and strengthening himself and he has improved his symptoms of foot pain and/or foot discomfort
* He does not feel the need to discontinue any running exercise nor does he feel the need to give up on a career in the military
* He has proven himself to his physician and he is ready to prove to the Board that he can and will complete basic training



3.  The applicant provides:

* A self-authored letter addressed to whom it may concern, dated 19 June 2010
* A statement from his physician dated 2 April 2010

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 enlisted in the Regular Army on 15 September 2004.

3.  The facts and circumstances surrounding the applicant’s discharge are not on file.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 8 November 2004, under the provisions of Army Regulations 635-200 (Enlisted Personnel Separations), chapter 5-11, for failure to meet procurement medical fitness standards.

4.  His DD Form 214 also shows:

* He completed 1 month and 24 days of net active service this period
* His service was uncharacterized
* He received an RE code 3
* He was assigned the separation program designator (SPD) code of JFW (failure to meet procurement medical fitness standards) 

5.  On 24 March 2010, the ABCMR denied the applicant’s petition for an upgrade of his discharge.

6.  The applicant submits a self-authored letter explaining why he now believes he can successfully serve in the Army and a statement from his physician who describes his condition as “flat feet.”  His physician states that it would be very difficult for the applicant to return to the service; however, he certainly could.  He states that surgery was discussed; however, he does not believe the applicant would be able to return to the Army after surgery.

7.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states 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, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  An RE code 3 applies to persons who have a waivable disqualification.

8.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD code to be used for these stated reasons.

9.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army Soldiers and Reserve Component Soldiers separated for cause.  The SPD code of JFW has a corresponding 
RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be changed to a code that will allow him to reenter the military.  However, there is no error or injustice in his assigned RE code.

2.  His contentions and the documents he submitted have been considered.  However, his records show he was discharged for failure to meet procurement medical fitness standards.  He was assigned an RE code of 3 and an SPD code of JKQ based on his reason for discharge.

3.  Although the applicant desires to reenter the military, it is insufficient justification for granting the relief requested.

4.  As his own doctor indicated, returning to the service would be very difficult for the applicant.  If U.S. Army Recruiting Command medical officials have already or will in the future refuse to grant him a medical waiver to enlist, it would be for his own protection, to avoid aggravating an already-existing condition.  In this situation, it would not be prudent for this Board to substitute its judgment for that of qualified medical officials.

5.  In view of the foregoing, his request should be 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)                                         AR20100016854



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ABCMR Record of Proceedings (cont)                                         AR20100016854



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