MEMORANDUM OF CONSIDERATION

	 

	BOARD DATE:           13 May 1999        
	DOCKET NUMBER:   AR1999021192

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

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Samuel Calderon		Member	
	Mr. Kenneth L. Wright		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, disability retirement, vice disability separation.  He states that he never would have agreed to his disability separation if he had known he could not return to active duty at a later date.  He states he was informed by an official at Walter Reed Army Medical Center that by agreeing to the severance pay and receiving a Reenlistment Eligibility (RE) Code of 3 he would be able to return to active duty.  He notes that after completing college in 1989 he felt he was ready to return to the Army but then found out that his records contained a “bar to enlistment” but was never able to find out “why the bar was in place.”  The applicant states that ultimately a local recruiter told him that the Army wanted nothing more to do with him and only after contacting his congressional representative was he told that his DD Form 214 contained an error.  He submits a copy of a 1997 letter from the Army’s Special Action Branch indicating that his RE Code should have been 4 and not 3.  He concludes that had he been given correct information he would never have accepted the severance pay but would have fought for medical retirement.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty on 1 September 1976 and successfully completed basic and was initially trained as a wheeled vehicle repairman but subsequently reclassified for duty as a power generator equipment repairer.

In March 1985 the applicant was transferred to the Medical Holding Unit at Walter Reed Army Medical Center with a two-year history of bilateral leg pain and on 25 April 1985 was referred to a Medical Evaluation Board (MEB).  The MEB summary noted the applicant had been on a temporary profile since 1982 and although he could walk over two miles he was unable to run more than one mile and could not jump or play competitive sports.  The final diagnosis was (1) stress reaction both tibiae, right greater than left and (2) minimal elevation of liver function tests, asymptomatic, etiology undetermined, no treatment indicated.  He was referred to a Physical Evaluation Board (PEB).

The PEB, convened on 3 May 1985, determined that his liver condition was not unfitting and therefore not ratable.  The board concluded that his bilateral leg pain had not stabilized to the point that a permanent degree of severity could be determined and recommended his name be placed on the Temporary Disability Retired List (TDRL) with a 40 percent disability rating until May 1986 when he would be re-evaluated.

On 5 August 1985 the applicant was released from active duty and his named placed on the TDRL.  His DD Form 214, issued at Walter Reed Army Medical Center, indicated a reenlistment eligibility code of RE-3.  At the time of his release from active duty he had 8 years, 11 months, and 5 days of active Federal service.

In May 1986 the applicant was reevaluated and although his 5 November 1985 PEB initially recommended that his name be retained on the TDRL, ultimately the Army’s Physical Disability Agency revised the recommendation, noting that his condition was sufficiently stable for final rating purposes but had “not improved to the extent that a finding of fit would be appropriate.”  The PEB recommended a disability rating of 20 percent, noting that “stress reaction of the lower extremities not requiring aids to ambulation (such as crutches as an extension/temporary replacement of the limb)” was normally rated at 20 percent.

The applicant indicated in a 22 December 1986 statement that he had consulted with a Ms. Murakami at Tripler Army Medical Center in Hawaii and agreed with the findings of the PEB providing his severance pay would be computed at pay grade E-5.  The findings and recommendation of the revised PEB were approved and on 25 February 1987 the applicant’s name was removed from the TDRL and he received his disability severance pay.

The 1997 letter from the Army’s Special Action Branch, which informed the applicant that his RE code was wrong, also informed him that if he wanted to reenlist he would be required to “provide his recruiting office with medical documentation that indicates that his medical condition has been reevaluated and he is medically cleared.”

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, then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of armed forces RE codes, including RA RE codes.

RE-3 applies to individuals who were not qualified for continued Army service, but the disqualification is waivable.  RE-4 applies to individuals separated from their last period of service with a nonwaivable disqualification.

Army Regulation 635-5, which established the policies and provisions for the preparation of the DD Form 214, indicated that individual separated by reason of physical disability would receive a RE code of 4.
Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 27 February 1987, the date the applicant’s name was removed from the TDRL and he was granted a 20 percent disability rating.  The time for the applicant to file a request for correction of any error or injustice expired on 27 February 1990.

The application is dated 3 November 1997 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

NOTE:  The ARBA Support Division in St. Louis should issue a DD Form 215 correcting the applicant’s RE Code on his 1986 DD Form 214 to reflect RE-4 vice RE-3.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__rvo___  ___sc___  __klw___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	Ar1999021192	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990513	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2. 110.00		
3. 142.00		
4.		
5.		
6.