MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 21 NOVEMBER 2002
         DOCKET NUMBER: AR2002074842

         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
Mr. Lester Echols		Member
Mr. Thomas Lanyi		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: In effect, the applicant requests that his reentry (RE) code and his separation (SPD) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected so that he can reenlist in the Army.

APPLICANT STATES: That he was placed on the temporary disability retired list (TDRL), and then removed from the TDRL and separated from the Army with a 20 percent disability rating. The regulations state that a 30 percent disability rating is required for retirement. He wants his RE code changed so that he can serve his country.

He submits a copy of a letter to a Member of Congress (MC) requesting her support; a copy of his 22 July 1992 DD Form 214; a copy of two letters from a from another MC, a copy of a response to that MC from the Total Army Personnel Command informing her that the applicant’s RE code was correct and could not be changed, advising that the applicant should apply to this Board for relief; a copy of an 8 June 1992 order placing him on the TDRL; a copy of an 8 June 1993 VA letter informing the applicant that he had been awarded a 10 percent disability rating for his left knee disorder; a copy of a 2 September 1993 order removing the applicant from the TDRL and discharging him with a 20 percent disability rating; a copy of a 16 June 1993 Physical Evaluation Board (PEB) proceedings and a copy of a letter to him concerning those proceedings; a copy of a 25 May 1993 VA decision awarding him a 10 percent disability rating for his left knee disorder; and a copy of a 30 October 1997 VA decision continuing an award of 20 percent rating for his left knee disorder.

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

The applicant entered on active duty on 28 May 1982, served four years, and was released from active duty on his ETS (expiration of term of service) on 27 May 1986.

On 24 February 1987 he reenlisted in the Army for three years.

Medical records show that the applicant injured his left knee in December 1988, and re-injured it in August 1989. He underwent surgery to his knee in September 1989, and underwent surgery again in 1991. On 6 April 1992 a Medical Evaluation Board (MEB) recommended that he be referred to a PEB because of his left knee condition. The applicant agreed, stating that he did not want to remain on active duty.

On 17 April 1992 a PEB determined that the applicant was physically unfit; however, could not determine whether or not his condition was permanent. The board recommended that he be placed on the TDRL with a 30 percent disability rating. The applicant concurred.

On 22 July 1992 the applicant was released from active duty and placed on the TDRL with a 30 percent disability rating. His DD Form 214 shows a reentry code of “4,” and a SPD code of “SFK.”

In May 1993 the applicant underwent a TDRL evaluation. The examining physician stated that it was unlikely that the applicant would return to full unrestricted military duty in his specialty, and referred the applicant to a PEB.

On 16 June 1993 a PEB determined that the applicant was physically unfit and recommended that he be discharged from the Army with a 20 percent disability rating. The applicant concurred.

On 2 September 1993 the applicant was removed from the TDRL and discharged from the Army because of permanent physical disability with a 20 percent rating.

Army Regulation 635-5 establishes the standardized policy for preparing and distributing the Department of Defense Form 214 (Certificate of Release or Discharge from Active Duty). In pertinent part, it directs that a separation report (DD Form 214) will be prepared at the conclusion of a period of active Federal service. An individual whose name is placed on the TDRL is considered to have been released from active Federal service and as such is issued a DD Form 214. While on the TDRL individuals do not accumulate active Federal service and as such when their names are removed from the TDRL and either returned to duty, permanently retired, or discharged from the service, a new DD Form 214 is not issued as they are not in an “active” status.

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 prescribed basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes. RE-4 applies to individuals who were separated from their last period of service with a non-waivable disqualification. Soldiers who were separated, discharged, or retired from their term of service because of physical disability are ineligible for reenlistment and receive an RE-4.

Army Regulation 635-5-1 states that SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data. It notes that “SFK” is the appropriate SPD code for individuals released from active duty and their names placed on the TDRL.
A “cross-reference” chart, provided by officials from the separations branch at the U.S. Total Army Personnel Command, confirms that “RE-4” is the appropriate RE code for individuals who receive an SPD code of SFK.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The Board notes the applicant’s contention that he was not permanent retired. In 1993 the PEB concluded that his knee condition had stabilized; consequently, he was discharged in September of that year because of his physical disability.

2. Nevertheless, the applicant was separated from active duty in July 1992 because of disability and as such, he was not eligible to reenlist, and received an SPD code of SFK and an RE code of 4. The RE code was proper, based on the circumstances of his separation. The fact that a permanent disability has now been rendered does not change the applicant's original reason for his 1992 separation from active duty and does not serve as a basis to change his correctly assigned RE code.

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 __ __LE ___ __TL____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074842
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021121
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.
3.
4.
5.
6.