IN THE CASE OF: BOARD DATE: 10 April 2012 DOCKET NUMBER: AR20110020124 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his reentry (RE) code of RE-3 be changed to an RE code which would allow him the option to reenter the military. 2. He states he believes he was misdiagnosed. He went to an ear, nose, and throat (ENT) specialist who concluded he has never suffered from his diagnosis of a vocal cord dysfunction. The doctor who diagnosed him only suggested a 90-day period after which he could then return to full active duty. He would like the opportunity to serve as either an enlisted Soldier or an officer. 3. He provides an ENT recommendation. CONSIDERATION OF EVIDENCE: 1. 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. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 26 June 2003. He completed training and was awarded military occupational specialty 11C (Indirect Fire Infantryman). 3. His records do not contain his discharge packet. However, his DD Form 214 shows, on 28 October 2004, he was discharged, with an honorable characterization of service, in pay grade E-3, under the provisions of Army Regulation 635-200, paragraph 4-24b (3), for the reason of disability with severance pay. He was given an RE code of 3 and a separation code of JFL. 4. He provided a document from a doctor, dated 20 April 2010, which indicated the applicant was a new patient. The doctor indicated the applicant had asthma as a baby. As a result of this, the applicant was told he may have difficulty breathing if he had to wear a chemical mask because his vocal cords could close up. The doctor stated the applicant had no problems whatsoever with his vocal cords. The doctor indicated that based upon his history and examination the applicant has normal vocal cord function and he was no more at risk of difficulty than any other normal individual. 5. His medical records are not available for review. 6. 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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the U.S. 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 Regular Army RE codes. 7. RE code 3 applies to persons not qualified for continued Army service, but the disqualification is waivable. 8. The Separation Program Designator Code (SPD)/RE Code Cross Reference Table states that when the separation code is JFL then RE code 3 will be given. 9. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. His discharge packet and any related medical documents are not available to the Board for review. However, it must be presumed that at the time the applicant was properly processed for discharge due to a properly-diagnosed medical condition. The fact that a civilian doctor stated that based upon the applicant's history and examination he has normal vocal cord function and he was no more at risk of difficulty than any other normal individual does not show the Army's diagnosis was an error. As such, there is no evidence of an error in assignment of his reason for separation and, therefore, no basis for changing his reason for separation and RE code. 2. The applicant was disqualified from reenlistment, but the disqualification is waivable. Since enlistment criteria change, and since an individual has the right to apply for a waiver, the applicant should periodically visit his local recruiting station to determine if he should apply for a waiver. It would not be appropriate for this Board to substitute its judgment for that of the appropriate recruiting officials who may determine that he is not medically fit for enlistment. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ __X____ ___X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ X______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20110020124 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110020124 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1