IN THE CASE OF:	  

		BOARD DATE:	    9 June 2011

		DOCKET NUMBER:  AR20100028377 


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 items 24 through 28 of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 June 1995.

2.  He states his discharge was unjust in that he found out his wife was cheating.  He was told that he could either stay in the Army for 6 months and repeat basic and advanced individual training or be separated with an honorable discharge.  He elected to go home and he was told he could come back in the Army later.  He states that the military physician that evaluated and diagnosed him with panic disorder but only talked to him for 30 minutes.  He does not now or ever have had panic disorder, which is indicated in his records.  It was not until he requested his records from the Army in order to get back in that he found out all of this in his record.  He states correcting his records would allow him to reenter the military or pursue a career in law enforcement, which could make him a better provider for his family.

3.  He provides:

* his DD Form 214
* his separation proceedings
* a DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States)
* a Standard Form (SF) 88 (Report of Medical Examination)
* 
an SF 93 (Report of Medical History) 
* a memorandum from the National Personnel Records Center, St. Louis, MO

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 14 March 1995 and he was assigned to Fort Sill, OK for training.

3.  On 2 June 1995, while he was still in training, a Medical Evaluation Board (MEB) diagnosed him with panic disorder without agoraphobia and determined this condition existed prior to service (EPTS).  The MEB recommended his case be referred to a Physical Evaluation Board (PEB).  In the applicant's DA Form 3947 (MEB Proceedings), he checked the box in item 15 that indicated he did not desire to continue on active duty and he agreed with the findings and recommendation of the MEB in item 24 (Action By Patient).

4.  In a memorandum, subject:  Request for Separation and Waiver of PEB Evaluation, dated 2 June 1995, the applicant requested to be discharged by reason of physical disability based on the findings and recommendation of the MEB, which were that he was unqualified for retention in military service because of an EPTS physical disability.  He also waived his right to a PEB evaluation. He confirmed that he had been fully informed and understood he was entitled to the same consideration and processing as any other member of the Army separated for physical disability.  He further acknowledged his understanding that this included consideration of his case by the adjudication system established by the Secretary of the Army for processing disability separations.  The applicant elected not to exercise this right and acknowledged that the Department of Veterans Affairs (VA) would determine his entitlement to VA benefits.  He finally 

acknowledged that he understood that if his request for discharge was approved, he would be separated by reason of an EPTS physical disability.

5.  On 13 June 1995, the separation authority approved his request for separation and waiver of a PEB evaluation and indicated that an entry-level status separation with service uncharacterized was required.  On 19 June 1995, he was discharged accordingly.

6.  The DD Form 214 he was issued at the time shows in:

* Item 12c (Net Active Service This Period) the entry "0000  03  06," indicating he completed 3 months and 6 days of service
* Item 24 (Character of Service) the entry “UNCHARACTERIZED.”
* Item 25 (Separation Authority) the entry "AR [Army Regulation] 635-40 [Physical Evaluation for Retention, Retirement, or Separation], chapter 5
* Item 26 (Separation Code) the entry "KFN"
* Item 27 (Reentry [RE] Code) the entry "3"
* Item 28 (Narrative Reason for Separation) the entry “Disability, Existed Prior to Service - Medical Board”

7.  Army Regulation 635-40 contains guidance on the Army's Physical Disability Evaluation System (PDES).  Chapter 5 contains guidance on the separation of enlisted members for non-service aggravated EPTS conditions when the Soldier requests waiver of a PEB evaluation.

8.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) states that unless the reason for separation requires a specific characterization, a Soldier will be awarded an uncharacterized description of service if in an entry-level status.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active service.

9.  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.  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.  

   a.  RE-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.

    b. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

10.  Army Regulation 635-5-1 (Separation Program Designator (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 that the SPD code "KFN" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-40, chapter 5, by reason of " Disability, Existed Prior to Service - Medical Board.”  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 KFN.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to reflect he suffers from no disqualifying medical condition by correcting items 24-28 to allow him to reenter the Army has been carefully considered.  However, the evidence is not sufficient to support his claim.

2.  Evidence of record shows he was discharged on 19 June 1995 due to a disability that existed prior to service as determined by an MEB.  By regulation, this mandated that he be separated from the Army and assigned an RE-3 code.  The MEB proceedings clearly established he suffered from panic disorder without agoraphobia that existed prior to his service.  The condition was presumably diagnosed by competent military medical personnel.  He concurred with the findings and recommendation of the MEB and he requested to be discharged and waived his right to a PEB evaluation.  Because this condition was identified within his first 180 days of service, his discharge was appropriately characterized as "uncharacterized" and he was assigned the appropriate SPD and corresponding RE-3 code.

3.  The applicant's desire to reenter the military was considered.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

4.  However, this does not mean that the applicant has been completely denied the opportunity to reenter military service.  Since he is eligible to apply for a waiver, he has the option of visiting his local recruiting station and consulting with recruiting personnel who have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are also required to process a request for waiver under the provisions of Army Regulation 601-210, chapter 4.

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)                                         AR20100028377



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ABCMR Record of Proceedings (cont)                                         AR20100028377



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