BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100024385 


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, that his Reentry (RE) Code be changed from a “3” to a “1.” 

2.  The applicant states, in effect, that he believes he was assigned the wrong RE Code and unjustly discharged instead of being given the proper strength training regimen that would have improved his knees.  He goes on to state he has seen a couple of doctors who have said his knees are fine and that exercise will only help them get better.  He further states he has tried to re-enlist in the National Guard and he was told it would be almost impossible for him to get into the National Guard.

3.  The applicant provides a statement from a physician clearing him for participation in the National Guard, a copy of his DD Form 214 and copies of his medical records.

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 19 August 1996 for a period of 6 years and training as an operating room specialist.  He completed basic training at Fort Jackson, South Carolina and he was transferred to Fort Sam Houston, Texas to undergo advanced individual training.

3.  On 7 May 1997, an Entrance Physical Standards Board (EPSB) determined the applicant did not meet the physical fitness standards for enlistment or induction under the provisions of Army Regulation 40-501 due to a condition of the knees that existed prior to service (EPTS).  The proceedings indicate the applicant complained of bilateral knee pain before entering the service and that he did not meet the standards for retention.

4.  The applicant concurred with the proceedings and requested a discharge from the Army without delay.  The applicant’s commander recommended that he be discharged and the appropriate authority directed discharge on 15 May 1997.

5.  Accordingly, he was honorably discharged on 21 May 1997 under the provisions of Army Regulation 635-40, paragraph 4-24B (4), due to disability that existed prior to service.  He had served 9 months and 3 days of total active service.  He was issued a separation code of “JFM” (Disability – EPTS) and an RE Code of “3.”

6.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  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 persons who have a non-waivable disqualification.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office.

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 JFM is the appropriate code to assign to Soldiers separated under the provisions of Chapter 5, Army Regulation 635-40, by reason of disability, EPTS.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JFM.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.

3.  The applicant was separated under the provisions of Army Regulation 635-40, chapter 5, by reason of disability, EPTS with an SPD code of "JFM."  Therefore, he was properly issued an RE Code of RE-3 in accordance with the applicable regulations.

4.  The applicant’s contentions have been noted.  However, there are procedures whereby the applicant can apply to a local recruiter for a waiver of his RE Code if he is in fact physically qualified and the needs of the Army at the time justify his return to service.

5.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20100024385



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ABCMR Record of Proceedings (cont)                                         AR20100024385



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