IN THE CASE OF:	  

		BOARD DATE:  10 April 2012

		DOCKET NUMBER:  AR20110018334 


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, his honorable discharge be changed to a medical retirement.

2.  The applicant states he was injured at Fort Carson, CO when his unit was loading vehicles for deployment in support of Operation Desert Storm.  He also states:

* he was barred from reenlisting after serving in the U.S. Navy (USN) from May 1980 to May 1984
* he served in the Navy Reserve (USNR) and U.S. Army Reserve (USAR) from May 1984 to October 1986
* he accepted reduction of two pay grades to cross over to the U.S. Army
* the Uniform Code of Military Justice (UCMJ) specifically states he is entitled to a medical review board
* he was informed when he was injured in 1990 that he needed to sign a bar to reenlistment
* his medical records from the USN and the Army are located in his case file at the (Department of Veterans Affairs (VA)) regional office in St. Louis, MO

3.  The applicant provides no additional evidence 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.  He served on active duty in the USN from 16 May 1980 to 15 May 1984.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period shows he was released from active duty and transferred to the USNR in pay grade E-4.  He was assigned a reentry eligibility (RE) code of RE-1.

3.  On 10 October 1986, he enlisted, in pay grade E-3, in the USAR Delayed Entry/Enlistment Program (DEP).  On 30 October 1986, he was enlisted, in pay grade E-3, in the Regular Army (RA) for a period of 3 years.  He was promoted to specialist/pay grade E-4 on 1 January 1987.

4.  He extended his enlistment for a period of 6 months and, on 12 February 1990, he immediately reenlisted for a period of 2 years.

5.  On 11 February 1992, he was discharged by reason of having completed his term of service.  He completed 5 years, 3 months, and 12 days of active duty service during this period.  He had completed a total of 11 years, 3 months, and 12 days of service for pay.  He was assigned an RE code of RE-1A.

6.  His service medical records were not available for review.

7.  The UCMJ, contained in Title 10, U.S. Code, Sections 801-946, provides the rules and procedures governing trials by court-martial and nonjudicial punishment.  As the military penal code, it provides commanders the tools for punishing military offenders for crimes they commit and maintaining good order and discipline in the Armed Forces.

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, provided eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.
	a.  The RE-1 assigned by the Navy applied to persons who were eligible for reenlistment provided all other criteria were met.

	b.  The RE-1A assigned by the RA applied to persons with over 4 years service for pay (if separated on or after 15 August 1978) who were fully qualified, but ineligible to enlist within 3 months following date of separation.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System and set forth policies, responsibility, and procedures that applied in determining whether a member was unfit because of physical disability to perform the duties of his office, grade, rank, or rating.

	a.  The medical treatment facility commander with the primary care responsibility evaluated those referred to him and would, if it appeared as though the member was not medically qualified to perform duty or failed to meet retention criteria, refer the member to a medical evaluation board (MEB). 
Those members who did not meet medical retention standards were referred to a physical evaluation board (PEB) for a determination of whether they were able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

	b.  Paragraph 2-2b(1) stated that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence he was barred from reenlisting when he was released from active duty from the USN on 15 May 1984.  He was assigned an RE code of 1, indicating he was eligible for reenlistment.

2.  He enlisted in the USAR/DEP and the RA in pay grade E-3, thereby only accepting a reduction in one pay grade.  

3.  There is no evidence he was barred from immediately reenlisting when he was discharged from the RA on 11 February 1992.  He was assigned an RE code of 1A.  This RE code indicated he could not enlist within 3 months of his separation.  However, he was not prevented from immediately reenlisting in the RA.  There is no evidence he attempted to reenter the RA more than 3 months after his discharge.

4.  The UCMJ does not prescribe rules or procedures governing Medical Review Boards.  These provisions were provided for in Army Regulation 635-40.  

5.  Notwithstanding his contention he was injured in 1990, there is no evidence in his military personnel records that he was not medically qualified to perform his duties or that he failed to meet medical retention criteria because of an injury.  Therefore, there was no reason to refer him to a medical evaluation board.

6.  In view of the above, there is an insufficient basis to change his honorable discharge to a medical retirement.

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)                                         AR20110018334



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ABCMR Record of Proceedings (cont)                                         AR20110018334



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