IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100021619 


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 his record and DD Form 214 be corrected by changing the reason for his discharge and changing his reentry (RE) code to 1.

2.  The applicant states he was discharged during training based on a medical condition (rhabdomyolysis) he did not have.  He states he has been tested at a Department of Veterans Affairs (VA) hospital and a determination was made that he does not have this condition.  He claims he really wants to enlist and this correction is only way he can do so.

3.  The applicant provides a VA rating decision 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 record shows he enlisted in the Regular Army on 27 July 2004 and was assigned to Fort Jackson, South Carolina, for training.

3.  On 24 September 2004, the applicant was discharged with an uncharacterized description of service after completing 1 month and 28 days of active military service.

4.  The record is void of a separation packet containing the specific facts and circumstances surrounding the applicant's discharge processing.  It does contain a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for discharge.

5.  The DD Form 214 issued to the applicant upon his discharge on 24 September 2004 shows he was separated under the provisions of chapter 5, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of "Disability, Existed Prior to Service (EPTS)-Medical Board."  He was given an RE code of 3.

6.  The applicant provides a VA rating decision, dated 23 May 2006, which shows he was denied service connection for a bilateral calf and hamstring muscle pain condition claimed as a bilateral leg injury.  The denial was based on a determination it was an EPTS condition and was not incurred or aggravated by military service.

7.  Army Regulation 635-40 contains guidance on the Army's Physical Disability Evaluation System.  The regulation provides for the separation of enlisted members for non-service aggravated EPTS conditions when the Soldier requests to waive a physical evaluation board (PEB) evaluation.

8.  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.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

9.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he does not have the medical condition that resulted in his discharge and that the reason for his separation should be changed to allow him to enlist has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record is void of the EPTS medical board proceedings or documentation containing the specific facts and circumstances surrounding the applicant's discharge processing.  However, the record does contain a properly-constituted DD Form 214 that identifies the authority and reason for the applicant's discharge.  It confirms he was separated based on a disqualifying medical condition that EPTS.  Absent any evidence of error or injustice, this document carries a presumption of government regularity in the discharge process.

3.  By regulation, in order to separate a member for an EPTS condition, the condition must be established by a medical board and the member must waive consideration by a PEB.  Absent any evidence of record or independent evidence submitted by the applicant showing error or injustice in the process, it must be presumed his separation processing was accomplished in accordance with the applicable regulation.  Therefore, there is an insufficient evidentiary basis to support a change to the authority and reason for his discharge.  

4.  The applicant is advised that based on the authority and reason for his discharge, he was assigned an RE code of 3, which means his disqualification is waivable.  Therefore, if he truly desires to enlist, he should contact local recruiting personnel who process 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 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)                                         AR20100021619



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ABCMR Record of Proceedings (cont)                                         AR20100021619



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