IN THE CASE OF: 

		BOARD DATE: 22 November 2023

		DOCKET NUMBER: AR20230001020


APPLICANT REQUESTS:

*	medical retirement vice separation for completion of required active 
service/expiration term of service (ETS)
*	change of his reentry eligibility (RE) code to RE-1
*	change of the narrative reason for his separation to "Convenience of the 
Government"
*	reissuance of his DD Form 214 (Certificate of Release or Discharge from Active 
Duty) and discharge certificate

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 
*	DA Form 3349 (Physical Profile), dated 30 June 2004
*	130 pages of military and civilian medical records

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states:

*	his discharge was in error for several reasons
*	he should have been referred to a Medical Evaluation Board (MEB)
*	his injuries at the time made him unfit for further duty
*	he should be assessed for the purpose of receiving an "EB" (interpreted to mean 
enlistment bonus)
*	his discharge was unfair and procedurally defective
*	he should be given a medical retirement or transferred to the Temporary 
Disability Retired List
3.  The applicant enlisted in the Regular Army on 7 February 2002. 

4.  A DA Form 3349, dated 30 June 2004, shows the applicant was issued a permanent 
physical profile based on chronic right Achilles tendonitis/posterior heel pain with no 
objective findings. The form also shows he was assigned a physical profile serial 
system (PULHES) code of "112111."

5.  The applicant's record show he served in Iraq during the following periods:

*	20 January 2003 to 26 August 2003
*	22 January 2005 to 24 January 2006
*	25 October 2007 to 12 December 2008

6.  The applicant's records also show he reenlisted on 26 July 2005, 29 September 
2006, and on 21 June 2007. 

7.  On 13 January 2009, the applicant underwent a medical examination for the purpose 
of separation. The DD Form 2808 (Report of Medical Examination) shows in:

*	Item 74a (Examinee/Applicant), he was found qualified for service
*	Item 74b (Physical Profile), he was assigned a PULHES code of 112111
*	Item 77 (Summary of Defects and Diagnoses), shows 11 defects and/or 
diagnoses, including right ankle pain with a permanent (P)-2 profile

Note: A physical profile, as reflected on a DA Form 3349 or DD Form 2808, is 
derived using six body systems: "P" = physical capacity or stamina; "U" = upper 
extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = 
psychiatric (abbreviated as PULHES). Each body system has a numerical 
designation: 1 meaning a high level of fitness; 2 indicates some activity 
limitations are warranted, 3 reflects significant limitations, and 4 reflects one or 
more medical conditions of such a severity that performance of military duties 
must be drastically limited. Physical profile ratings can be permanent or 
temporary.

8.  Orders issued on 3 February 2009, as amended, ordered the applicant's release 
from active duty, not by reason of physical disability, and his assignment to an FLARNG 
unit effective 20 June 2009.

9.  The applicant's DD Form 214 shows he was honorably released from active duty and 
transferred to an FLARNG unit on 20 June 2009. The DD Form 214 further shows in:

*	block 25 (Separation Authority): Army Regulation 635-200 (Active Duty Enlisted 
Administrative Separations), chapter 4 (Separation for Expirations of Service 
Obligation)
*	block 26 (Separation Code): MBK
*	block 27 (RE Code): 1
*	block 28 (Narrative Reason for Separation): completion of required active service

10.  The applicant's records contain a DD Form 4 (Enlistment/Reenlistment Document 
Armed Forces of the United States) showing he enlisted in the Florida Army National 
Guard (FLARNG) on 10 February 2009 for a period of three years. On 17 July 2009, the 
FLARNG issued a Memorandum for Record, subject: Correction of Records, correcting 
the applicant's records to show he was administratively assigned to the FLARNG 
effective 21 June 2009 with an ETS of 20 June 2012.

11.  On 23 November 2011, the applicant's commander sent him via U.S. Postal 
Service certified mail a Notification of Separation Proceedings under the provisions of 
Army Regulation 135-178 (ARNG and Army Reserve Enlisted Administrative 
Separations), chapter 9 (Unsatisfactory Performance), based on noncompliance with 
Army Regulation 40-501 (Standards of Medical Fitness) and failure to obey an order or 
regulation. 

12.  The certified mail envelope shows the correspondence was returned to 
sender/unclaimed/unable to forward. 

13.  The applicant's Noncommissioned Officer Evaluation Report (NCOER) covering the 
period 1 December 2010 through 30 November 2011, his last NCOER on record, shows 
the comment "Soldier is pending an AWOL [absent without leave] discharge."

14.  On 15 February 2012, a DA Form 268 (Report to Suspend Favorable Personnel 
Actions (Flag)) was imposed against the applicant based on adverse action effective 
12 February 2011.

15.  Orders issued on 29 June 2012 directed the applicant's honorable discharge from 
the ARNG and as a reserve of the Army effective 20 June 2012. The order show he was 
assigned an RE code of 3.

16.  The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and 
Record of Service) shows he was honorably discharged from the ARNG on 20 June 
2012 by reason of ETS with an RE code of 3. The NGB Form 22 also shows the reason 
for the RE-3 was based on an adverse action flag. 

17.  There is no evidence in the applicant's available records indicating that, during his 
Regular Army and/or ARNG service, he was unable to perform his military duties due to 
a medical disability.

18.  The applicant is requesting reissuance of his DD Form 214 and discharge 
certificate; however, he did not provide an explanation for his request, did not identify 
the specific error(s) he believes exist on his DD Form 214, and did not identify the 
regulatory guidance that substantiates his request. Additionally, he did not provide his 
discharge certificate and his available records do not contain a discharge certificate.

19.  The applicant also indicated that he should be assessed for the purpose of "having 
a: EB" which is interpreted to mean an enlistment bonus; however, he did not provide a 
reason for his request and did not identify the type of bonus he was entitled to receive 
upon his enlistment in the Regular Army and/or ARNG but was denied such bonus. 

20.  MEDICAL REVIEW:

    a.  The Army Review Boards Agency (ARBA) Medical Advisor was asked to review 
this case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and/or the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations:  
    b.  The applicant is applying to the ABCMR requesting, in essence, a referral to the 
Disability Evaluation System (DES).  He states:
“I should have been discharged with a Medical Evaluation Board.  My injuries at 
the time would have made me unfit for further duty.  I should be assessed for the 
purposes of having an MEB.”
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The applicant’s DD 214 shows he entered the regular Army 
on 7 February 2002 and was honorably discharged on 20 June 2009 at the completion 
of his required active service under authority provided in chapter 4 of AR 635-200, 
Active Duty Enlisted Administrative Separations (6 June 2005).  It shows three periods 
of service in Iraq: 20 January 2003 thru 26 August 2003, 22 January 2005 thru 24 
January 2006, and 25 October 2007 thru 12 December 2008.  He was awarded a 
Combat Action Badge during one of these tours.  His reentry code of 1 denotes he was 
fully qualified to reenlist.

    d.  His National Guard Report of Separation and Record of Service (NGB Form 22) 
for the period of Service under consideration shows he enlisted in the Army National 
Guard on 21 June 2009 and received an honorable discharge from the Florida Army 
National Guard (FLARNG) on 20 June 12 under the separation authority provided by 
paragraph 6-35a of NGR 635-200, Enlisted Personnel Management (31 July 2009): 
ETS (expiration – term of service).  It shows a total service that period of 3 years, 0 
months, and 0 days.  He received a reenlistment eligibility RE-3 – Eligible to reenlist 
with waiver – because at the time of discharge he was “Flagged for adverse action.”

    e.  The applicant’s pre-entrance Report of Medical History and Report of Medical 
Examination show he was in good health, without any significant medical history or 
conditions.

    f.  On 30 June 2004, the applicant was placed on a non-duty limiting permanent 
physical profile for chronic right Achilles tendonitis and posterior heel pain.  No other 
conditions were listed on the profile.  The applicant was marked as capable of 
performing all the functional activities required of all Soldiers, including live in an austere 
environment.  The profile simply allowed the applicant to perform an alternate aerobic 
event in lieu of the 2-mile run event for his Army Physical Fitness Test (APFT).  No 
further permanent profiles were issued.

    g.  He underwent his pre-separation examination on 13 January 2009.  The provider 
documented a normal examination except for symptomatic moderate pes planus (flat 
feet).  He listed multiple diagnoses on the Report of Medical Examination to include 
right ankle pain, nighttime cough, chronic low back pain, hypertension, “post-combat 
counseling x 3”, and “depression – no treatment.”  He noted his right ankle condition 
with the accompanying non-duty limiting permanent physical profile and he was cleared 
for separation.

    h.  On 23 November 2011, his Army National Guard company commander informed 
him of his initiation of separation action under provisions in chapter 9 of AR 135-178 
[Enlisted Administrative Separations] “for Unsatisfactory Performance based upon Non-
Compliance with AR 40-501 [Standards of Medical Fitness] and under UCMJ Article 92 
failure to obey an order or regulation.  I am recommending that you receive a General 
(Under Other than Honorable conditions).”
    i.  The applicant did not respond to this notification which had been sent with 
response forms by certified mail.
    j.  The applicant’s final NCO Evaluation Report was an annual with a thru date of 30 
November 2011.  The applicant was marked as meeting none of the Army Values with 
the rater stating “Soldier is currently pending an AWOL discharge.”  His senior rater 
bottom blocked with “Poor” both his overall performance and overall potential.” 
    k.  The applicant has no medical documentation in MEDCHART. 
    l.  There is no probative evidence the applicant had any medical condition which 
would have failed the medical retention standards of chapter 3 of AR 40-501, Standards 
of Medical Fitness, prior to his voluntary separations; which prevented the applicant 
from attending drills and/or maintaining contact with his unit; or which prevented the 
applicant from reenlisting and continuing his military career.  Thus, there was no cause 
for referral to the Disability Evaluation System.  Furthermore, there is no evidence that 
any medical condition prevented the applicant from being able to reasonably perform 
the duties of his office, grade, rank, or rating prior to his voluntary separations.
    m.  Review of his records in JLV shows he has been awarded multiple VA service-
connected disability ratings for a combined rating of 100%.  These include PTSD, 
asthma, and pes planus.  However, the DES compensates an individual only for service 
incurred medical condition(s) which have been determined to disqualify him or her from 
further military service.  The DES has neither the role nor the authority to compensate 
service members for anticipated future severity or potential complications of conditions 
which were incurred or permanently aggravated during their military service; or which 
did not cause or contribute to the termination of their military career.  These roles and 
authorities are granted by Congress to the Department of Veterans Affairs and executed 
under a different set of laws.
    n.  Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or 
Separation (8 February 2006) states: 
“The mere presence of an impairment does not, of itself, justify a finding of 
unfitness because of physical disability.  In each case, it is necessary to compare 
the nature and degree of physical disability present with the requirements of the 
duties the Soldier reasonably may be expected to perform because of their office, 
grade, rank, or rating.”
    o.  Because PTSD is associated with avoidant behaviors, this condition mitigates his 
unsatisfactory participation and would be cause for a discharge upgrade had he not 
been discharged after completing his three years of contracted service with an 
honorable discharge.
    p.  It is the opinion of the ARBA medical advisor that a referral of his case to the DES 
is unwarranted.  





BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation. Upon review of the applicant’s petition, available military records and 
medical review, the Board the concurred with the advising official finding that a referral 
of his case to the DES is unwarranted.  The Board noted the medical opine review that 
found no probative evidence the applicant had any medical condition which would have 
failed the medical retention standards, prior to his voluntary separations; which 
prevented the applicant from attending drills and/or maintaining contact with his unit; or 
which prevented the applicant from reenlisting and continuing his military career. 

2.  The Board determined the applicant’s record show at the time of separation, 
documentation supports the narrative reason for separation properly identified on the 
DD Form 214.  As such, the Board determined under liberal consideration changes to 
the applicant’s narrative reason are not warranted.  Furthermore, the Board determined 
there was insufficient evidence of an error or injustice which would warrant a change in 
the applicant’s reentry eligibility (RE) code to RE-1.  The Board recognized the 
applicant’s request for referral to the DES for a behavioral health condition, however it is 
without merit. Based on this, the Board denied relief.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned. 


	 
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.


REFERENCES:

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 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.

2.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an 
individual to be found unfit by reason of physical disability, he or she must be unable to 
perform the duties of his or her office, grade, rank or rating. Performance of duty despite 
impairment would be considered presumptive evidence of physical fitness.

3.  Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or 
Separation) establishes the Disability Evaluation System (DES) and sets forth policies, 
responsibilities, and procedures that apply in determining whether a Soldier is unfit 
because of physical disability to reasonably perform the duties of his or her office, 
grade, rank, or rating. It provides that a Medical Evaluation Board is convened to 
document a Soldier's medical status and duty limitations insofar as duty is affected by 
the Soldier's status. A decision is made as to the Soldier's medical qualifications for 
retention based on the criteria in Army Regulation 40-501. The regulation in effect at the 
time states:

	a.  Disability compensation is not an entitlement acquired by reason of service-
incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted 
and who can no longer continue to reasonably perform because of a physical disability 
incurred or aggravated in service.

	b.  The mere presence of impairment does not of itself justify a finding of unfitness 
because of physical disability. In each case, it is necessary to compare the nature and 
degree of physical disability present with the requirements of the duties the member 
reasonably may be expected to perform because of his or her office, rank, grade, or 
rating. The Army must find that a service member is physically unfit to reasonably 
perform his or her duties and assign an appropriate disability rating before he or she 
can be medically retired or separated.  

	c.  When a member is being processed for separation for reasons other than 
physical disability (e.g., retirement, resignation, reduction in force, relief from active 
duty, administrative separation, ETS, etc.), his or her continued performance of duty, 
until he or she is referred to the DES for evaluation for separation for reasons indicated 
above, creates a presumption that the member is fit for duty.  

4.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) 
covers eligibility criteria for enlistment and processing into the Regular Army, Army 
Reserve, and Army National Guard. This regulation provides 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. Chapter 3 prescribes basic eligibility for prior-
service applicants for enlistment and includes a list of Armed Forces RE codes.  

	a.  RE-1 applies to persons completing their term of service who are considered 
qualified to reenter the Army, so long as all other qualifications are met.

	b.  RE-3 applies to persons not qualified for continued Army service at the time of 
discharge, but the disqualification is waivable.

5.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags), 
paragraph 1-14 of the regulation in effect at the time, states a flag properly imposed in 
accordance with this regulation prohibits reenlistment. 

6.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, 
and administrative instructions regarding an applicant’s request for the correction of a 
military record. Paragraph 2-9 states 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 evidence.

7.  Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure 
that an applicant seeking corrective action by ARBA be provided with a copy of any 
correspondence and communications (including summaries of verbal communications) 
to or from the Agency with anyone outside the Agency that directly pertains to or has 
material effect on the applicant's case, except as authorized by statute. ARBA medical 
advisory opinions and reviews are authored by ARBA civilian and military medical and 
behavioral health professionals and are therefore internal agency work product. 
Accordingly, ARBA does not routinely provide copies of ARBA Medical Office 
recommendations, opinions (including advisory opinions), and reviews to ABCMR 
applicants (and/or their counsel) prior to adjudication.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230001020


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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