PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           8 March 2000                   
	DOCKET NUMBER:   AR1999026390

	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.  

	Mrs. Joyce A. Hughes		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests correction of appropriate military records to show a reentry eligibility (RE) code, which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications, which preclude reenlistment.

3.  The applicant states that he is requesting RE-Code change so that he can reenlist.  His injury occurred during Advanced Individual Training (AIT) at Fort Knox, Kentucky.  An evaluation in 1992 showed no residual fracture in the hip.

4.  The applicant's military records show that he was born on 10 January 1970.  On 9 March 1989, he enlisted in the Regular Army for 4 years with no prior service.

5.  On 20 July 1989, the applicant was injured in AIT and was reassigned to the medical holding company at Fort Knox, Kentucky.  The particulars concerning the injury are missing from his record.

6.  On 1 August 1989, a Physical Evaluation Board (PEB) founded the applicant unfit for duty because of his physical disability.  At the same time the applicant requested Permanent Change of Station Orders pending Disability Separation or Retirement.

7.  On 14 August 1989, the applicant was notified that he was being placed on the Temporary Disability Retired List (TDRL) in accordance with Army Regulation 635-40.

8.  On 5 September 1989, the applicant was honorably discharged and placed on the TDRL with a disability rating of 30 percent.  He was assigned reentry code of RE-4.

9.  On 9 May 1990, the applicant was scheduled for a physical examination to determine his fitness.  On 26 October 1990, the applicant’s disability was
terminated for failure to report for periodic medical examination.  

10.  On 5 September 1994, the applicant was administratively removed from the TDRL and honorably discharged.  The Defense Finance and Accounting Service, in Cleveland, Ohio was also notified to stop all retirement pay.

11.  Army Regulations 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  “Physically unfit” is synonymous with “unfit because of physical disability.”

12.  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 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.

13.  RE-4 applies to individuals separated from the last period of service with a nonwaivable disqualification.

CONCLUSIONS:

1.  The applicant’s medical record and the PEB proceedings are missing from his record therefore, in the absence of medical evidence to the contrary, it is presumed that the available service records are correct as presently constituted. 

2.  The evidence of record shows that the applicant failed to report for his periodic physical examination within the time required.  As a result of his failure to report to the physical examinations, he was removed from TDRL and was honorably discharged.  In view of the circumstances in this case the assigned reenlistment eligibility code is not appropriate.  It would be fair and equitable to change the applicant’s separation code and reenlistment code to one that is waivable.

3.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process
a request for waiver under the provision of chapter 4 of Army Regulation 601-210 
(RA and Army Reserve Enlistment Program).

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENTATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was given an honorable discharge from the Army on 5 September 1994, under the provisions of paragraph 5-3, Army Regulation 635-200, Secretarial Authority.

2.  That his separation code be changed to JFF and RE code changed to 
RE-3.

BOARD VOTE:  

__rvo___  __eja___  __ewl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999026390	
SUFFIX		
RECON		
DATE BOARDED	20000308	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	19940905	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	100.0300	
2.	110.0200	
3.		
4.		
5.		
6.