MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 September 2000                  
	DOCKET NUMBER:   AR2000043540

	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	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baxter		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:  Reconsideration of his previous application to correct his records by providing physical disability retirement.

APPLICANT STATES:  He contends that he filed a timely application because he did not know, until 1997, that his re-entry code (RE) was wrong.  He believes that he is entitled to the requested relief because the Board acknowledged that the RE-3 code was an error.  In effect, that at the time of separation, he was told  that if he accepted physical disability severance pay and an RE-3 that he would be able to return to active duty. If he not been misled, he would have fought to prove that he was sufficiently disabled to warrant disability retirement.  He contends that his well documented chronic digestive problems that are currently rated at 10 percent by the Department of Veterans Affairs (VA) and should have been rated by the Army.  He believed he could return to active duty and had only 12 years remaining to qualify for retirement.  He also did not want to be labeled “disabled “ when he had to enter the civilian job market.  He would never have accepted physical disability severance pay had he not been improperly advised that the RE-3 re-entry code would allow him to return to active duty. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 13 May 1999 (COPY ATTACHED).

The prior review was flawed in that it did not address the applicant’s contention that he discovered the error in 1997.  Therefore, Board review is warranted.
 
The applicant’s original application states  “Information supplied by a DOD civilian at Walter Reed Medical Center.  I was informed by that individual that by agreeing to the severance pay and signing my DD214 the RE-3 code in box #27 would enable me to return to military service.After completing college in 1989 I felt ready to return to military service.  I went to the recruiting center located at the Tacoma Mall Office Building during the Gulf War to reenlist.  Working with SGT W____ I was informed that I had a bar to reenlistment.  When I asked him why the bar was in place he was not able to give me an answer.During the following years I had tried to return to the service and was unable to, due to the bar.  I again went to Sergeant W____ and requested that I be given an explanation from the Army as to why I had a bar.  After 2 weeks, I was finally told by SGT W____ that the Army did not want anything more to do with me and that they would not furnish any information as to why a bar to enlisting was on.”

An 11 April 1985 medical evaluation states, in pertinent part, “His past medical history is wholly unremarkable.”

The applicant was transferred to the Temporary Disability Retired List on 5 May 1985.
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.  There is no evidence to substantiate the applicant’s assertion that he was counseled that he would be allowed to return to active duty.  His assertions are not credible because, an RE-3 would have required a waiver.  If he had been counseled about an RE-3, he would have been advised that a waiver would be necessary. 

2.  Additionally, there is no available evidence that he had any additional medical condition that would have warranted physical disability separation.  There is no evidence that chronic digestive problems interfered with his performance of duty.

3.  Notwithstanding the applicant’s assertions, the Board concludes that the RE-3 code was a simple typographic mistake and not a material error. 

4.  As early as 1989 the applicant was clearly aware that he could not re-enter the service, yet he waited until 1997 to apply to this Board.  However, arguments about the failure to timely file are moot because this reconsideration examines and addresses the merits of the case.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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

__AAO__  __MHM__  ____TFB_  DENY APPLICATION

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

INDEX

CASE ID	AR200043540	
SUFFIX		
RECON		
DATE BOARDED	20000926	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.