IN THE CASE OF:  

		BOARD DATE:  4 March 2014 

		DOCKET NUMBER:  AR20130011424 


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 a waiver of his medical disqualifications so that he can reenter the Army.  

2.  The applicant states:

	a.  He can pass any test he is given, medically, physically, mentally, and emotionally.  He does not smoke, drink, or use drugs.  His hip is 100% fine with no problems.

	b.  After he was discharged he began a relationship with a woman who was abusive.  He decided to reenter the Army and his recruiter had it all set for him to do testing.  When he tried to get his possessions he ended up incarcerated for burglary. 

	c.  There is no excuse for what he has done but he is hoping he will be allowed to reenter the Army.  He has bettered himself in every way.  He has earned associate and bachelor degrees.  The structure of the Army alone will help him transition back into the world after being incarcerated for over a decade. 

3.  The applicant provides a/an:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* American Bible Academy Official Student Transcript
* declaration from Mr. E----- J. A. K------, a nurse practitioner, dated 25 May 2013
* declaration from Mr. C---------- B--------, a co-worker
* declaration from Mr. T----- S. P----
* declaration from Mr. C---- C-------
* declaration from Mr. J---- T. M----
* declaration from Mr. B---- M----
* declaration from Mr. W---- G------
* letter written to the Army Review Boards Agency (ARBA)
* note to ARBA, dated 24 July 2013

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.  His enlistment physical is not available; however, a DA Form 1966/2 (Record of Military Processing – Armed Forces of the United States) shows the applicant indicated he had previously been rejected for enlistment in the Armed Forces.  The DA Form 1966/3 shows in Section IV (Remarks):  "While in USMC [U.S. Marine Corps] DEP broke ankle and didn't ship." 

3.  He enlisted in the Regular Army (RA) on 14 November 1996.  He was assigned to Fort Benning, GA, for basic training. 

4.  His DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 18 December 1996, shows in item 8 (after careful consideration of medical records, laboratory findings, and medical examination, the board found that he was medically unfit for enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians the condition existed prior to service.

	a.  Item a states "this service member, a 22 year old white male in the 4th week of his initial enlistment training was seen and evaluated as follows."

	b.  SUBJECTIVE FINDING:  Left hip and ankle pain 8 out of 10.  Initially seen 5 December 1996, unable to perform sit-ups, push-ups, run, or march without pain.  Prior medical history small chip fracture to left ankle in 1992.  Motor vehicle accident injury in 1995 to left hip did not seek treatment for chronic pain.

	c.  OBJECTIVE FINDING:  Faxed civilian treatment records.

	d.  DIAGNOSIS:  Chronic left hip and ankle pain.

	e.  DISPOSITION:  "This Soldier does not meet medical fitness standards for enlistment UP of paragraph 10b(9), Chapter 2, AR 40-501.  EPTS:  Yes.  Service aggravated:  No.  Soldier does meet retention standards UP of Chapter 3, AR 
40-501.  It is recommended that he be separated from the military service UP Paragraph 5-11, AR 635-200." 

5.  On 3 January 1997, the medical approving authority approved the findings of the EPSBD. 

6.  On 7 January 1997, the applicant agreed with the proceedings and requested to be discharged from the Army without delay.  

7.  On 7 January 1997, his unit commander recommended approval of the discharge action. 

8.  On 10 January 1997, the discharge authority approved the applicant's discharge from the Army.  Accordingly, he was discharged from active duty on 
31 January 1997, under the provisions of paragraph 5-11, Army Regulation
635-200, by reason of failure to meet procurement medical fitness standards.  He completed 2 months and 17 days of active duty service.  His DD Form 214 also shows in:

* item 24 (Character of Service) Uncharacterized
* item 26 (Separation Code) JFW
* item 27 (Reentry Code) RE-3

9.  The applicant submits:

	a.  A declaration from a nurse practitioner, showing he observed the applicant and concluded he is free of any physical limitations and is suitable for any type of activity/sport/work as deemed physically suitable for said type individual.

	b.  Six other declarations from individuals attesting to the applicant's physical fitness, strength, stamina, and endurance also state he sets a good example and motivates others.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated.  A medical proceeding conducted by an EPSBD, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.

11. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-1 includes a list of the RA RE codes.  An 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.  An 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 unless a waiver is granted.  

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code JFW is the correct code for Soldiers separating under the provisions of chapter 
5-11 of Army Regulation 635-200.

13.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The cross reference table in effect at the time of his discharge shows the SPD code JFW has a corresponding RE code 3.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant entered military service with a pre-existing injury.  The EPSBD proceedings clearly established he suffered from disqualifying medical conditions that existed prior to service.  

2.  Accordingly, since he failed medical procurement standards, separation action was initiated.  He was advised of his rights and presented with options.  He elected immediate discharge without any delay.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  His RE code was assigned based on the fact that he was separated under the provisions of paragraph 5-11 of Army Regulation 635-200 by reason of failure to meet procurement medical fitness standards.  The appropriate separation code associated with this type of discharge is "JFW" and the corresponding RE code associated with this separation code and type of discharge is RE-3.  Therefore, he received the appropriate RE code associated with his discharge and there is no reason to change either entry.

4.  There is no evidence in the available records nor did the applicant provide evidence to justify a waiver of his medical condition.  As such, there is no reason to change the reason for her separation.

5.  The ABCMR does not establish eligibility for entry into the Army nor does correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are required to process requests for enlistment 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)                                         AR20130000514



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ABCMR Record of Proceedings (cont)                                         AR20130011424



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