IN THE CASE OF:
BOARD DATE: 14 July 2011
DOCKET NUMBER: AR20110000256
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by changing the reason for his discharge (Disability, Severance Pay) and changing his reentry (RE) code to 1.
2. The applicant states after sustaining an injury while in Germany, he was not allowed proper time to heal. He claims he has since completely healed from his injury and has no pain. He states he is greatly interested in returning to service.
3. The applicant provides his DD Form 214, fit for duty report, and Noncommissioned Officer Evaluation Reports (NCOERs) 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 applicants 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 applicants 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 initially enlisted in the Regular Army on 27 September 1999, and was trained in and awarded military occupational specialty (MOS) 15N (Avionic Mechanic).
3. The applicant's record is void of a separation packet containing the facts and circumstances surrounding his processing through the Physical Disability Evaluation System (PDES). It does contain a properly-constituted DD Form 214 that identifies the authority and reason for separation.
4. The applicant's DD Form 214 shows he was honorably discharged on 17 November 2005, after completing 6 years, 1 month, and 21 days of active military service. It also shows he was separated under the provisions of chapter 4, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of "Disability, Severance Pay," and was assigned an
RE code of 3.
5. The applicant provides a medical fitness declaration from an Occucare International physician, dated 24 April 2010. This declaration indicates the applicant is fit for duty under United States Army Central Command (CENTCOM) deployment policy and that it was valid for one year.
6. Army Regulation 635-40 establishes the Army's PDES according to the provisions of Title 10, U.S. Code, chapter 61, and DOD Directive 1332.18. It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.
7. 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. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for a change to the authority and reason for his separation has been carefully considered. However, there is insufficient evidence to support this claim.
2. The applicant's record is void of a separation packet containing the facts and circumstances surrounding his medical separation processing through the PDES, and the applicant has failed to provide them. However, the record does contain a properly-constituted DD Form 214 that identifies the authority and reason for the applicant's discharge. Absent evidence of an error or injustice in the PDES processing, this document carries with it a presumption of government regularity in the applicant's PDES/discharge processing.
3. The medical declaration provided by the applicant in itself does not call into question the diagnosis and determination of unfitness made by competent military medical authorities at the time of the applicant's processing through the PDES. Therefore, it alone is not a basis to support changing the authority and reason for discharge, or the assigned RE code of 3.
4. The applicant is advised that RE code 3 indicates a waviable disqualification. Therefore, if he desires to reenlist he should contact local recruiting officials who are required to 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 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) AR20110000256
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ABCMR Record of Proceedings (cont) AR20110000256
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