RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 October 2005
	DOCKET NUMBER:  AR20050000810 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Mr. Carl W. S. Chun

Director

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Mr. Hubert O. Fry

Member

Mr. Robert Rogers

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Reentry (RE) Code of "3" be changed to a more favorable code so that he can reenlist in the Regular Army (RA).

2.  The applicant states that he was discharged on 30 June 2003 from active duty (AD) with a medical discharge for glomerulonephritis, a kidney disease.  On 1 July 2003, he appeared at the Poughkeepsie Army Recruiting Station and his reenlistment packet was prepared.  On 3 July 2003, a waiver for his RE Code was requested from The Surgeon General of the Army (SGA).  Three days later his waiver was approved and a copy was provided. 

3.  A week later, the Army sent him to Albany, New York, to reenlist.  Upon his arrival, he was scheduled to take a mini medical examination.  The physician informed him that he needed a full physical with a waiver from the SGA.  He assumed that it would not be a problem to obtain a waiver from the SGA.  He returned to Poughkeepsie and waited for the waiver.  After a month, the waiver had not been approved.  He requested that the Army recruiting station resubmit his waiver.  After several attempts, the waiver was denied.  

4.  He contacted his Congresswoman for assistance and her office contacted the Department of the Army who scheduled a physical for him.  He passed his physical and requested that the SGA grant him another RE Code waiver.  However, the SGA denied his waiver and suggested that he see a nephrologist to clarify whether or not he had a kidney disease. 

5.  He states that in February 2004, he saw a physician who performed some test and reviewed his medical history.  The physician concluded that he did not have glomerulonephritis and informed the Army of his findings.  Another request for waiver was submitted which was denied on 28 February 2004.  The reason for denial was the discovery of a kidney stone.

6.  He also states that the Army sent him to Albany on numerous occasions for various tests.  Occasionally, when he arrived for testing, he was informed that the scheduling was a mistake and no testing was done.  These trips resulted in many missed work days especially since the last trip on 4 March 2004 again was in error.  He is constantly being asked why he is doing all this work to reenter the Army.  His answer is always the same, he wishes to make the Army a career.  He wants nothing more than to serve his country in time of war.  He comes from a military family, and he was named after his great uncle who died in World War II.

7.  The applicant provides a copy of his medical evaluation board (MEB) with attachments, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of two letters from the same doctor of osteopathy in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records contain a copy of a DD Form 2808 (Report of Medical Examination), that was prepared prior to his entrance on active duty (AD) in the RA, which shows that he was medically qualified for a commission in the Marine Corps with a 111121 physical profile.  It indicates a medical inspection date of 22 April 2003.  His DA Form 2807-1 (Report of Medical History) shows that he was treated for varicella (chicken pox) and facial acne.  

2.  The applicant's military records show he enlisted in the RA on 22 April 2003, for a period of 4 years.  

3.  On 13 June 2003, the applicant prepared a letter addressed "To Whom it May Concern."  He stated that he was writing the letter because the physician was trying to discharge him for a condition that he did not have.  He lied to the physician because he wanted to be discharged but decided that it was wrong.  He informed the physician that he really did not have "Iga nephropathy" (disease of the kidney) but was informed that he was being sent home anyway.  He told the physician that he could not discharge him for something that he did not have. The physician replied that he would be sent home for blood in his urine.  The physician became upset with him for lying.  He was later admitted to the hospital for a viral illness.  He had a very high fever and missed his family which is why he lied.  He is sorry that he lied but that is no reason to discharge him so close to graduation.  He is willing to go through any test needed to prove that he has no kidney disease.

4.  Only a portion of the applicant's medical records are available for review.

5.  On 16 June 2003, the applicant appeared before an MEB and was diagnosed as having glomerulonephritis.  The MEB determined that his condition existed prior to service (EPTS).  The applicant was given assignment limitations that precluded his assignment to isolated areas where definitive medical care was not available.

6.  In an optional form (OF) 275 (Medical Record Report) the applicant's history of EPTS condition was described as follows, "19 years old with hematuria [blood 

in the urine] noted during commitment, likely viral illness.  Soldier with reported history of nephropathy and family history of nephropathy."

7.  The MEB recommended that the applicant be separated from service under the provisions of Army Regulation 635-40, chapter 5.  The findings and recommendations were approved on 16 June 2003.  The applicant disagreed with the MEB's findings and recommendations and submitted an appeal.  His appeal was considered and the original findings and recommendations were confirmed on 19 June 2003. 

8.  On 20 June 2003, the Commander, Headquarters, 4th Training Brigade, Fort Jackson, South Carolina, approved the applicant's separation and a waiver of a physical evaluation board (PEB).

9.  On 20 June 2003, the applicant prepared a sworn statement.  He stated that he was being discharged for EPTS but all tests had come back negative and he disagreed with the decision.  He also indicated that his recruiter asked him about his medical condition and he had informed him that he did not have any medical condition.

10.  The applicant was discharged on 30 June 2003, under the provisions of Army Regulation 635-40, chapter 5, due to physical disability, EPTS – Medical Board. He was furnished an uncharacterized discharge.  He had a total of 2 months and 9 days of creditable service and was issued a RE Code of "3."

11.  The applicant provides two letters from the same physician, dated 27 January and 2 March 2004.  In summary, the physician stated that the applicant was a patient of his and that he had seen him for alleged hematuria.  His work-up is consistent with nephrolithiasis (a condition marked by the presence of renal calculi) and he opined that it was highly unlikely that the applicant had glomerulonephritis. 

12.  There is no evidence in the applicant's service record, and he has provided none, to show that he was given a waiver by the office of the SGA to enable his reenlistment on about 1 July 2003.

13.  There is no evidence, and the applicant submitted none, to support his allegation that the Army sent him to Albany, New York, to reenlist; that he was scheduled to take a mini medical examination but was later told he had to undergo a full physical examination and obtain a waiver from the SGA; that a 
request for waiver was submitted ; that he waited  for the waiver which never came; that he requested that the Army recruiting station resubmit his waiver; and that after several attempts, the waiver was denied.
14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge and change of reason on 21 May 2004.  On 12 January 2005, the ADRB reviewed and denied the applicant's request.  The ADRB determined that the applicant's discharge was proper and equitable and indicated that changes to the RE Code do not fall within the purview of the ADRB.  If he desired to reenlist, he should contact the local recruiter to determine his eligibility to reenlist. 

15.  Army Regulation 635-40, which governs the separation of Soldiers who are physically unfit, paragraph 5–1, states that this chapter provides for separation of an enlisted Soldier for non-service aggravated Existing Prior to Service (EPTS) conditions when the Soldier requests a waiver of PEB evaluation.  This chapter is applicable to enlisted Soldiers on active duty for more than 30 days.  Separation under the authority of this chapter is not to be confused with separation under the provisions of Army Regulation 635-200, chapter 5.  The latter provides for involuntary separation within the first 6 months of entry onto active duty for failure to meet procurement fitness standards.  Paragraph 5–2 of this regulation states that in order to separate a Soldier under this chapter, the case must meet the following conditions:

	(1) Soldier is eligible for referral into the disability system;

	(2) The Soldier does not meet medical retention standards as
determined by the MEB;

	(3) The disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty;

	(4) The Soldier is mentally competent;

	(5) Knowledge of information about his or her medical condition would not be harmful to the Soldier’s well being;

	(6) Further hospitalization or institutional care is not required;

	(7) After being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action; and

	(8) Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for VA benefits.

16.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. 

17.  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 (RA) and the US 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.

18.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  

19.  Army Regulation 635-5-1 prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator (SPD) "KFN", as shown on the applicant’s DD Form 214, with an effective date of 7 April 2003, specifies the narrative reason for discharge as "Disability, Existed Prior to Service-Medical Board" and that the authority for discharge under this SPD is "Army Regulation 635-40, chapter 5."

DISCUSSION AND CONCLUSIONS:

1.  The date of application to the ABCMR is within three years of the decision of the ADRB; therefore, the applicant has timely filed. 







2.  The applicant alleges that he lied to the physician about a condition that he did not have because he wanted to be discharged.  He later admitted to the doctor that he had lied and told him that they could not discharge him for a condition that he did not have.  He informed the physician that he did not have "Iga nephropathy."  He alleges that the doctor told him that he was sending him home anyway.  The applicant now states that he is sorry that he lied but there was no reason to discharge him and he is willing to undergo any test to prove that he has no kidney disease.

3.  The letters written in support of the applicant by his attending physician were considered; however, the applicant's condition was considered by a MEB.  He was found to have glomerulonephritis, his condition was EPTS, he reported a history of nephropathy and family history of nephropathy, and the MEB recommended that he be discharged.

4.  The evidence shows that the applicant was discharged under the provisions of Army Regulation 635-40, chapter 5, for disability, EPTS-Medical Board.  He was given a RE Code of "3" due to his non service aggravated EPTS condition and waiver of PEB.

5.  The applicant has failed to provide sufficient evidence to show that his separation, which resulted in his receiving an RE Code of RE "3", was in error or unjust.

6.  It is apparent that the applicant wishes to reenlist in order to serve his country in time of war; however, his RE Code of "3" prevents him from doing so.

7.  There is no evidence in the applicant's service record, and he has provided none, to show that he was given a waiver by the office of the SGA to enable his reenlistment; that the Army sent him to Albany to reenlist; that he was scheduled to take a mini medical examination but was later told he had to undergo a full physical examination and obtain a waiver from the SGA; that a request for waiver was submitted; that he waited for the waiver which never came; that he requested that the Army recruiting station resubmit his waiver; that after several attempts, the waiver was denied; that he contacted his Congresswoman and he was scheduled for a physical examination, which he passed; and that he applied for another waiver RE Code waiver from the SGA, which the SGA denied and suggested that he see a nephrologist to clarify whether or not he had a kidney disease.



8.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_HOF____  _RR____  __BJE       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.




_    Barbara J. Ellis_____
          CHAIRPERSON




INDEX

CASE ID
AR20050000810
SUFFIX

RECON

DATE BOARDED
20051019
TYPE OF DISCHARGE
UNCHAR
DATE OF DISCHARGE
20030630
DISCHARGE AUTHORITY
AR 635-40, chapter 5
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110
2.

3.

4.

5.

6.