MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:              5 December 2000
	DOCKET NUMBER:      AR2000039365

	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. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a reentry eligibility (RE) code which will allow reenlistment.  

APPLICANT STATES:  That derogatory remarks and opinions should be expunged from his records.  He contends that “Laser Assisted Insitu Keratomeleusis (LASIK)” surgery is no longer disqualifying, but is waivable.  He submits a letter; a DD Form 214; a copy of his separation packet; a sworn statement; medical records; general counseling statements; character references; two statements from Stahl Eye Associates dated 15 September 1998 and 27 October 1998; a diploma from the University of “Fordhamensis;” correspondence that was exchanged between him and both his congressman and his senator concerning his discharge; and two affidavits in support of his case.  Additionally, he requests a replacement DD Form 214 for the original that he lost.

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

That on 19 August 1998, he enlisted in the Regular Army (RA) for 4 years.
While in processing into his unit at Fort Benning, Georgia, he admitted that he had corrective eye surgery.  

The evidence of records shows that the applicant underwent LASIK surgery on 7 and 21 February 1997, as a result of significant nearsightedness and astigmatism.  His uncorrected visual acuity was “count fingers in January 1997.  The refractive error was –7.75-1.00 x 180 in the right eye and –7.50-1.25 x 005 in the left eye.”  After corrective surgery, his vision was 20/30 in the right eye and 20/25 in the left eye without correction.  The refraction was –0.75-0.50 x 150 giving a visual acuity of 20/20 in the right eye and –0.50-1.25 x 165 giving a visual acuity of 20/20 in the left eye.

On 8 September 1998, he was counseled concerning separation for an erroneous enlistment.  He was informed that it had been his responsibility to inform his recruiter and the Military Entrance Processing Station (MEPS) of his medical condition. 

On 14 September 1998, the applicant was notified of the recommendation for separation under the provisions of Chapter 7, Army Regulation 635-200, by reason of erroneous enlistment.  The commander cited the basis for his recommendation was that the applicant had concealed the fact that he had surgery for “refractive keratectomy (eye problems).”  

On 14 September 1998, he waived consultation with legal counsel and he submitted a statement in which he contended that “his recruiter was aware of his corrective eye surgery and that he was told that corrective surgery did not apply to the questions he would be asked at the MEPS.”

On, 17 September 1998, the separation authority approved the recommendation and directed that the applicant be discharged in an entry level status. 

On 1 October 1998, the applicant was separated under the provisions of chapter 7, Army Regulation 635-200, for erroneous entry, with an uncharacterized discharge.  He had completed 1 month and 13 days of active military service.  He was assigned an RE code of RE-3. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 7 of that regulation provides, in pertinent part, that an erroneous entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions.  If in an entry level status, the characterization will be uncharacterized.  

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 enlisting and processing into the RA and the eligibility for prior service applicant’s for enlistment.  That chapter includes a list of Armed Forces RE codes and RA RE codes. 

RE-3 applies to persons not qualified for continued Army service, however, the disqualification is waivable.  Local recruiting personnel have the responsibility for determining whether an individual meets the current enlistment criteria and that recruiting personnel are required to process a request for waiver, if applicable.  There is no evidence that he has ever requested such a waiver.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

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

2.  The applicant failed to inform officials at the MEPS that he had eye surgery that was possibly disqualifying.  Even if LASIK surgery is not now disqualifying, it was at the time he enlisted.  

3.  The applicant was separated and assigned an RE code in accordance with regulations then in effect.  There appears to be no basis for removal or waiver of the disqualification which established the basis for the RE code in 1998.  This code is still valid at this time.  

4.  However, since his RE code is waivable, and in view of changes in enlistment criteria, the applicant is encouraged to contact his local recruiting office to obtain information on processing a waiver to reenlist.  He should present a copy of this Board's action at that time;  however, he must understand that he must meet all medical and moral requirements for reenlistment.  Further, processing of a waiver does not guarantee reenlistment, since such requests must be evaluated based upon the needs of the military service at that time.

5.  There are no provisions for reissuing an original DD Form 214.  An original DD Form 214 is issued only once.  Duplicated copies are normally sufficient for use in veteran claim processing and civilian employment actions. 

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___amc_  __alr_____  __jam___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

					

INDEX

CASE ID	AR2000039365	
SUFFIX		
RECON		
DATE BOARDED	20001205	
TYPE OF DISCHARGE	(UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR635-200, Chapter 7 	
DISCHARGE REASON		
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	134.0000	
2.		
3.		
4.		
5.		
6.