MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 08 NOVEMBER 2001
         DOCKET NUMBER: AR2001059789

         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. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Karen Y. Fletcher		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)

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APPLICANT REQUESTS: That his reentry eligibility (RE) code be changed so that he can reenlist.

APPLICANT STATES: That he does not have any medical problems that would hinder his performance. He was released from active duty because of asthma, which he does not have nor did he have prior to his military service.

The applicant submits a copy of a 10 July 2001 letter to a Member of Congress (MC) requesting his assistance and outlining his situation; a copy of a 31 March 2001 letter from a doctor who stated that the applicant had allergic rhinitis, well controlled with medication and specific allergen immunotherapy, but no evidence of asthma; and a copy of a 18 July 1997 letter from a doctor who indicated that data from studies did not corroborate a diagnosis of asthma.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the Army for 4 years on 18 July 1984, completed training as an infantryman, and in November 1984 was assigned to an infantry battalion at Fort Campbell, Kentucky. Medical reports shortly thereafter show that he was treated for probable asthma and probable bronchopneumonia in November 1984 and January 1985.

In February 1985 the applicant was transferred to a Medical Holding Company at Blanchfield Army Community Hospital on Fort Campbell. A 12 July 1985 report of medical examination shows that the applicant was not qualified for active duty with a physical profile serial of 4 1 1 1 1 1. A medical board evaluation narrative shows that the applicant’s condition was diagnosed as recurrent lower airway obstruction and recurrent sinusitis, probable episodic asthma, with normal lung function and airway reactivity between episodes. His case was referred to a Medical Evaluation Board (MEB). On 16 July 1985 a MEB referred the applicant to a Physical Evaluation Board (PEB). The applicant concurred.

On 22 July 1985 a PEB determined that the applicant was physically unfit because of recurrent asthma and recommended that he be separated from the service with a 10 percent disability rating. The applicant did not concur and demanded a formal hearing. He contended that his asthma was not mild and that he should receive a higher disability rating. A 20 September 1985 medical addendum shows that the applicant was put on additional medications following an emergency room visit for asthma on 17 July 1985, and was also started on additional medications on 19 August 1985, and that he was seen an additional; four times over the next five days, but his condition did not improve. He was hospitalized, treated, and discharged with a tapering dose of Prednisone. The applicant concurred with the addendum.

On 18 October 1985, a PEB indicated that the applicant’s condition, bronchial asthma, moderate; requiring frequent emergency room visits and repeated steroid courses; made him physically unfit because of his recurrent asthma, and recommended that he be placed on the temporary disability retired list (TDRL) with a 30 percent disability rating. The applicant’s counsel stated on 21 October 1985 that the applicant concurred with the PEB findings and requested that his request for a formal hearing be withdrawn. The recommendation of the PEB was approved on 5 November 1985.

The applicant was placed on the TDRL on 16 December 1985. His DD Form 214 shows that he had 1 year, 4 months, and 29 days of service. His separation code on that form was “SFK” and his reenlistment code “RE-4.”

On 19 November 1986 the applicant underwent a periodic medical examination. His condition was diagnosed as reactive airways disease, largely exercise exacerbated, minimal to mild in severity; and atopy with positive skin disease. The examining physician stated that the applicant was unfit for further military duty, that it was unlikely that his condition would ever improve significantly to allow return to an active duty status, and recommended that consideration be given to permanent retirement. The applicant concurred with the findings and recommendations of the medical examination.

On 23 December 1986 a PEB determined that the applicant was physically unfit because of mild asthma, and recommended that he be separated from the service with a 10 percent disability rating. The applicant was forwarded a copy of the PEB proceedings, but failed to respond. On 2 February 1987 the PEB proceedings were approved. The applicant was removed from the TDRL effective on 16 March 1987 because of permanent physical disability. He was awarded a disability rating of 10 percent.

Army Regulation 635-5, then in effect, provides instructions for the preparation of the DD Form 214, and states in pertinent part that the proper separation program designator (SPD) code will be entered as reflected in Army Regulation 635-5-1. That regulation prescribes the specific authority, the reasons for the separation of members from active military service, and the separation program designators to be used for those stated reasons. It explains the type of separations used to include mandatory retirement – the retirement or placement of a member on the retired list that is required by law, both permanent and temporary disability retirement. That regulation shows that a soldier retired because of a temporary physical disability under the provisions of Army Regulation 635-40, will have a SPD code of “SFK” entered on his DD Form 214.

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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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US 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 RA RE codes.

Paragraph 3-22 of that regulation identifies the reentry eligibility (RE) codes. Those codes are used for administrative purposes only and used for identification of an enlistment processing procedure. The code RE-4 applies to persons separated from his last period of service with a non-waivable disqualification.

That regulation also states in pertinent part that prior service personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect. Applicants who have correct RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized. Recruiting personnel are authorized to process requests for waiver.

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. Notwithstanding the applicant’s contention, he was determined to have asthma during his military service, a condition he acknowledged, as indicated in his nonconcurrence with the findings of a 22 July 1985 PEB. He was found physically unfit for military service by a PEB and was placed on the TDRL on 16 December 1985 with a 30 percent disability rating. In effect, he was retired and was receiving disability retirement pay from the Army. He was physically disqualified from reenlisting. His RE code was appropriate and administratively correct.

2. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

4. 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

__FNE __ __BJE __ __KYF __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059789
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011108
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.	110.00
2.	4
3.
4.
5.
6.