MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 JUNE 2003                  
	DOCKET NUMBER:   AR2002081970

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Mr. Eloise C. Prendergast		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:  Physical disability retirement.

The applicant states that he experienced back pain after performing physical training on 9 October 1977 when he was stationed at Fort Huachuca, Arizona.  He was transported by ambulance to the hospital at Fort Huachuca and was diagnosed as having a strained back.  His condition worsened.  On 26 May 1978 a medical board at Fort Knox, Kentucky indicated that he was medically qualified for limited duty with a physical profile serial of 1 1 3 1 1 1, because of degenerative disc disease.  Captain "N," a doctor, ignored his profile, stating that the applicant was overweight and that there appeared to be no medical reason for his condition.  However, Captain "O," his commanding officer, stated that he could be sent before a medical evaluation board for a medical discharge.  

He was discharged with an honorable characterization of service, under the provisions of Army Regulation 635-200, chapter 2, with a separation code of "JBK," and a reenlistment code of "RE-3," even though his medical condition still existed.  Because he was still being medically evaluated, he should have been retired because of his disability.  He questions how he could be discharged honorably and be barred from reenlistment, while receiving the Good Conduct Medal and the Army Commendation Medal. 

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:

The applicant enlisted in the Army for four years on 11 January 1977.  His Personnel Qualification Record shows that he was assigned as a student at Fort Huachuca for training as an image interpreter, did not complete the course; was assigned to Fort McClellan, Alabama for military police training, and then to Fort Knox, Kentucky for training as a tank driver, not completing either course.  He completed a clerk-typist course at Fort Jackson, South Carolina, and was assigned to Fort Rucker, Alabama in October 1978.  He was promoted to pay grade E-5 effective on 1 June 1979.

A 10 October 1977 medical record shows that the applicant was seen at the emergency room at the Fort Huachuca hospital for low back pain, and that a doctor "popped" his back giving the applicant instantaneous relief.  A 13 October 1977 medical record shows that the applicant was diagnosed with having low back pain.  He continued to receive treatment for his back, and on 7 March 1978, while assigned to Fort McClellan, received a temporary profile for his low back pain.  He was seen for his back pain in May 1978 while assigned to Fort Knox.  
A 26 May 1978 DA Form 3349 (Medical Condition – Physical Profile Record) shows that the applicant received a permanent physical profile serial of               1 1 3 1 1 1 because of degenerative disc disease, and that he was qualified for limited duty, with no running more than one kilometer, nor marching more than five miles, no inverted crawl, run/dodge/jump, and no repetitive lifting more than 20 pounds. 

On 13 November 1978 the applicant was evaluated by a dietitian at the Fort Rucker Hospital because of his overweight condition.  In a 13 November 1978 letter to the applicant's commanding officer, a doctor at the Fort Rucker hospital outpatient clinic stated that the applicant was 28 pounds overweight, and had been placed on a 1000 calorie diet.  He stated that there appeared to be no medical reason for his condition.  On that same date, the applicant was placed on the weight control program.

The applicant was evaluated for his overweight condition again on 5 February 1979 and 9 April 1979.  On the latter date, the medical officer stated that the applicant had no weight loss, and no medical reason for his overweight condition. The applicant's commanding officer was advised accordingly.  His commanding officer indicated that he had talked with the doctor, suggesting that the applicant be sent before a medical evaluation board for a medical discharge, and that he would like to see if they could get him to lose weight before they tried to get him out of the Army.  He stated that the applicant was a good soldier, that he had counseled him and challenged him to become more active and to make a concerted effort to lose weight.  He stated that he informed him that if he did not lose weight he would be forced to take action.

A 31 August 1979 radiographic report of the applicant's lumbar spine disclosed an increase in the lumbosacral angle and some narrowing of the joint space between L5 and S1.  The report indicated that the condition could be anatomical. It indicated that the fifth lumbar vertebra was transitional in type with asymmetrical facets.  There was no evidence of compression fracture or spondylolisthesis.  
 
On 5 September 1979 the applicant was barred from reenlisting because of his failure to meet weight loss requirements.

The applicant was seen on 7 September 1979 and his condition was diagnosed as chronic low back pain and obesity.  A 14 March 1980 medical record shows that he was seen again because of his overweight condition.  He was still overweight.  The examining official indicated that there would be no further weight control visits.
The applicant was honorably discharged on 10 January 1981 because of the expiration of his term of service.  His separation code on his DD Form 214 is shown as "JBK," and his reenlistment code as "RE-3."

In a 23 September 2000 memorandum a VA doctor stated that the applicant was being treated for asthma, degenerative joint disease, chronic low back pain, obesity, and impotence.

On 16 October 2002 the VA informed the applicant that his service-connected disability was rated at 10 percent.

Army Regulation 635-200, Chapter 2, then in effect, provides for the discharge or release from the active Army of soldiers upon termination of their enlistment.
Army Regulation 635-5-1 prescribes the policy for standardization of separation program designator (SPD) codes.  SPD codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty.  SPD code “JBK” identifies an enlisted soldier discharged under the provisions of Army Regulation 635-200, Chapter 2, for completion of required active service, who is ineligible for, barred from, or otherwise denied reenlistment.

Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment, and includes a list of armed forces RE codes, including RA RE codes.  A reentry code of “3” indicates that a person is ineligible for reenlistment unless a waiver is granted.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, then in effect, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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.

There is no evidence, nor has the applicant provided any, to indicate that he was physically unfit for duty at the time of his discharge.  The applicant is presumed to have performed his military duties until he was discharged.  Consequently, there is no basis to correct his record to show physical disability retirement.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 10 January 1981, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 10 January 1984.

The application is dated 28 October 2002 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 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.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___RVO_  __JPI ___  __ECP __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002081970	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030612	
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.		
3.		
4.		
5.		
6.