IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100021562 


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, through a member of congress, that his reentry (RE) code of RE-3 be upgraded to an RE-1.

2.  The applicant states:

a. he does not now nor did he ever have the medical condition for which
his discharge was based on; and

b. he would like to reenlist in the Army.

3.  The applicant provides the following:

* Member of Congress Letter dated 30 July 2010
* Privacy Act Statement
* DD Form 214 (Certificate of Release Discharge from Active Duty)
* DD Form 293 (Application for the Review of Discharge)
* Memorandum dated 24 October 2001
* Medical record document extracts

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 record shows he enlisted into the Regular Army and entered active duty on 11 July 2001.  His record shows he never completed basic combat training and was never awarded a military occupational specialty.

3.  On 24 October 2001, the applicant’s commander was notified that the applicant was pending an evaluation by the Entrance Physical Standards Board (EPSBD).  A Separation Statistical Data worksheet shows he was diagnosed with asthma.

4.  The results of the EPSBD is not included in the applicants official military personnel file (OMPF) and it is also void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, it does include a DD Form 214 that shows he was discharged after completing a total of 4 months and 10 days of active military service under the provisions of paragraph 5-11, Army Regulation 635-200 (Personnel Separations),

5.  Item 26 (Separation Code) of the DD Form 214 lists the Separation Program Designator (SPD) code JFW, and Item 28 (Narrative Reason for Separation) lists the reason for his separation as "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 (RA) and the US 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-4 applies to members permanently disqualified from further service.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. 


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 JFW is the appropriate code to assign to Soldiers separated under the provisions of Paragraph 5-11, Army Regulation 635-200, by reason of “failed medical/physical procurement standards”.  The SPD/RE Code Cross Reference Table included in the regulation establishes RE-3 as the proper code to assign members separated for this reason with the SPD code of JFW.  

8.  Army Regulation 635-200 (Enlisted Separations) provides the Army's enlisted personnel separation policy.  Paragraph 5-11 of the same regulation provides that Soldiers who are 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, active duty for training, or initial entry training will be separated.  A medical proceeding conducted by an EPSBD, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code should be changed from RE-3 to RE-1.

2.  Although the evidence of record does not include a separation packet, it does contain a properly constituted DD Form 214 that confirms he was discharged under the provisions of paragraph 5-11, Army Regulation 635-200, by reason of failed medical/physical procurement standards.  By regulation, JFW and RE-3 are the proper SPD and RE codes to assign members for this reason.  Therefore, the SPD and RE codes assigned the applicant in conjunction with his separation from active duty were appropriate and remain valid.

3.  The applicant is advised that although no change is being recommended to his RE code, this does not mean that he is permanently disqualified from reenlistment.  RE-3 is applicable to members who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  Therefore, if he desires to reenter the service, he should contact a local recruiter who is best qualified to determine his eligibility based on the needs of the Army, and who can process an RE code waiver.

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)                                         AR20100021562





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ABCMR Record of Proceedings (cont)                                         AR20100021562



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