IN THE CASE OF:	  

		BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140009705 


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 an upgrade of his uncharacterized discharge for entry level service based on physical disability to an honorable discharge with no physical disability.  He also requests a change of his separation code and his reentry code (RE) from RE “3” to RE “2. 

2.  The applicant states:

	a.  He believes that he had problems during basic training due to fear and anxiety that no longer exist because he has matured.  

	b.  He was coerced into saying things about his medical history that just are not true.  These include his reporting a history of past headaches.  The medical records also report things he never said.  

	c.  What happened to him in the service had nothing to do with his pre-service vehicle accident or any other pre-service incident.  

	d.  He consulted a neurologist who ordered magnetic resonance imaging (MRI) and examined his medical history.  She is confident he is capable of strenuous exercise.  

	e.  He is not asking for a handout but rather a chance to finish what he started and a chance to show what he has achieved, so far, in college.  If given another chance, he is willing to sign a waiver relieving the Army of any responsibility for any physical problems through basic training.  His goal is to continue his education and become a physician assistant.

3.  The applicant provides copies of – 

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period of service from 4 January to 1 June 2006
* 13 October 2010 medical examination by Diane R____, M.D.
* 20 October 2010 MRI report 
* 27 October 2010 review of the case by Dr. Diane R____, M.D.
* Discharge Summary for a 24 January to 6 February 2006 hospitalization
* DD Form 2215E (Reference Audiogram), dated 22 March 2006
* DA Form 4287 (Personnel Action) dated 16 February 2006

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 and entered active duty on 4 January 2006.

3.  On 17 January 2006, he received medical treatment at an Army hospital emergency department for complaints of intermittent headaches and bilateral leg weakness.  Following an initial computed tomography (CT) scan which suggested various possible abnormalities, he was transferred to a civilian facility for more extensive testing.

4.  Subsequently, a Medical Evaluation Board (MEB) found the applicant medically unqualified for continued service and recommended his case be considered by a Physical Evaluation Board (PEB).  The applicant agreed with the MEB's findings and recommendations.  The PEB rated his disability at 20 percent.  The applicant concurred and waived formal consideration of his case.  
5.  The Physical Disability Agency determined the applicant’s condition existed prior to his entry onto active service and was not aggravated by the service.  

6.  Consequently, on 1 June 2006, he was separated due to physical disability and assigned a separation program designator code of “JFL” and a RE of “3.”

7.  The documents the applicant submitted in support of his request include:

	a.  A medical examination report, dated 13 October 2010, signed by Diane R____, M.D. who recorded the applicant's history as he reported it, conducted a physical examination and ordered an MRI.

	b.  The radiologist’s report shows:

Small scattered nonspecific cerebral white matter lesions.  As described on previous report these are slightly greater than typically seen for the patient's age.  This could be related to a history of migraine headaches or old head trauma.  These type lesions can be seen with micro vascular ischemia as in a setting of hypertension, diabetes, heart disease and or collagen vascular disease.

	c.  The Discharge Summary for his 24 January through 6 February 2006 hospitalization is part of his military medical records.

8.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and MOS with the medically-disqualifying condition.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers.  This cross reference table shows SPD code JFL has a corresponding RE code of 3.
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his discharge be changed to honorable and that his RE code be changed to RE-2 so that he can reenlist.  He claims that his military medical records report a pre-service history that he did not provide and that he was forced to relate things that are not true. 

2.  There is no available evidence to support the applicant's contention that his medical history is anything other than what is recorded in his military medical records.  He could have submitted a copy of his complete pre-service medical records to show that the information was, at least, inaccurate.

3.  The applicant was separated for a physical disability that existed prior to his entry onto active service.  There is no basis for changing the reason for discharge or the RE code as he did not meet physical entrance or retention standards.  

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

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)                                         AR20120005657



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ABCMR Record of Proceedings (cont)                                         AR20140009705



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