IN THE CASE OF:	

		BOARD DATE:	  4 December 2008

		DOCKET NUMBER:  AR20080015041 


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 eligibility (RE) code of RE-4 be changed to an RE code which would allow him to reenlist.

2.  The applicant states he would like to reenter the Army Reserve.  He adds he is willing to surrender his disability payment in order to enlist in the Army Reserve.

3.  The applicant provides a medical progress note dated 20 August 2008 and his separation document (DD Form 214, Certificate of Release or Discharge from Active Duty).

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 21 January 1988, was awarded the military occupational specialty of track vehicle mechanic, and was promoted to pay grade E-4.

3.  On 5 February 1993, the applicant was released from active duty due to temporary physical disability under the authority of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 
4-24b(2).  He was assigned an RE code of RE-4.  On 6 February 1993, he was placed on the Temporary Disability Retired List (TDRL).

4.  On 29 March 1994, the applicant was removed from the TDRL and discharged for physical unfitness; he was rated 20 percent disabled with entitlement to severance pay.

5.  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 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of Armed Forces RE codes.

6.  Paragraph 3-22 (U.S. Army RE Codes) of Army Regulation 601-210, then in effect, provided that RE-4 applied to a person separated from his or her last period of service with a non-waivable disqualification.  Soldiers separated for physical unfitness were assigned an RE-4 code.

7.  Paragraph 3-27 (Correction of Army RE Codes) of Army Regulation 601-210, then in effect, provided that RE codes may be changed only if they are determined to be administratively incorrect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had a temporary physical disability and was properly placed on the TDRL.

2.  Individuals placed on the TDRL are assigned an RE code of RE-4.  The code was correct at that time and there is no reason to change it.

3.  While the applicant's desire to enlist in the Army Reserve is commendable, there is no basis for changing a properly assigned RE code.

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)                                         AR20080015041



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ABCMR Record of Proceedings (cont)                                         AR20080015041



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