MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF.
        

                  BOARD DATE: 16 October 2003
                  DOCKET NUMBER: AR2003090183

         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
Ms. Yvonne J. Foskey		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry		Member
Ms. Mae M. Bullock		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, that his reentry (RE) code of RE-3 be changed to RE-1.

APPLICANT STATES: In effect, that he should not have been medically discharged because he has had no medical problems during the past three and one half years. He claims that at the time of his discharge, he informed doctors that he was physically able to perform his duties and he did not want to leave the Army. In support of his application, he submits a supporting letter from a
United States Army Reserve (USAR) physician who practices at the Mountain State Orthopedics & Sports Medicine facility in Summerville, West Virginia.

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

He served on active duty for 4 years, 5 months, and 6 days, from 7 February 1995 until 12 July 1999. He was trained and served in military occupational specialty (MOS) 12B (Combat Engineer). The highest rank he attained while serving on active duty was sergeant/E-5 (SGT), and he earned the following awards during his active duty tenure: Army Achievement Medal (5th Award); Army Commendation Medal; Army Good Conduct Medal; National Defense Service Medal; Noncommissioned Officer’s Professional Development Ribbon; Army Service Ribbon; Overseas Service Ribbon; Multinational Force and Observers Medal; Air Assault Badge; and Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars.

The specific facts and circumstances pertaining to the applicant’s separation processing through medical channels is not on file. However, the record does contain a properly constituted separation document (DD Form 214) that contains the authority and reason for the applicant’s discharge and confirms that he was separated under the provisions paragraph 4-24b(3), Army Regulation 635-40, by reason of physical disability with severance pay.

The DD Form 214 also confirms that based on the authority and reason for his discharge, the applicant was assigned a Separation Program Designator (SPD) code of JFL and an RE code of RE-3. The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated). There is no indication that the applicant raised any issues in regard to his medical processing or disability separation at the time.

The applicant provides a supporting letter from a USAR medical doctor, who indicates that the applicant is completely asymptomatic and that he could now perform active duty at any level he so chooses.

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Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth the 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. Chapter 3 contains the policy and outlines the standards for determining unfitness because of physical disability. It states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating. Paragraph 4-24b(3) provides the authority to separate soldiers by reason of physical disability with severance pay based on a determination by the appropriate medical disability processing agency.

Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR). 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. RE-1 applies to persons completing their terms of service who are considered fully qualified to reenter the US Army and RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation but the disqualification is waivable.

Table 4-1 of Army Regulation 601-210 provides a list of all waivable moral and administrative disqualifications. It confirms that those individuals who separated from any component of the Army for medical reasons, to include separation with or without disability severance pay, are disqualified from reenlistment; however, this disqualification is waivable.

Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and
the SPD codes to be entered on the DD Form 214. The SPD code of JFL was the appropriate code for the applicant based on the guidance provided in this regulation for soldiers separating under the provisions of paragraph 4-24b(3), Army Regulation 635-40, by reason of physical disability with severance pay. The SPD/RE Code Cross Reference Table used in conjunction with this regulation establishes that RE-3 will be the code assigned to members separated with this SPD code.

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. The Board notes the applicant’s contention that he should not have been medically discharged due to having no medical problems in the past three and one half years. However, it finds insufficient evidence to support this claim.

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2. The Board also carefully considered the supporting doctor’s letter provided by the applicant that indicates that he is now physically able to perform active duty service. However, it finds this current medical judgment does not impact the original disability determination made by the Army at the time of the applicant’s discharge.

3. The applicant’s record is void of facts and circumstances concerning events that led to his disability separation processing or discharge. However, the Board notes the applicant’s record contains a properly constituted DD Form 214 that was authenticated by the applicant’s signature. This document identifies the authority and reason for discharge, and the Board presumes government regularity in the separation process. Further, notwithstanding his comments to the contrary, there is no evidence that suggests the applicant contested his disability processing or discharge at the time he was separated.

4. The evidence of record further confirms that the applicant was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of physical disability with severance pay. It also verifies that he was assigned a SPD code of JFL and an RE-3 code in accordance with the applicable regulation. Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5. In view of the circumstances in this case, the Board finds the RE-3 code was appropriately assigned based on the authority and reason for the applicant’s discharge. Therefore, the Board concludes there is an insufficient evidentiary basis for changing it at this time.

6. The applicant is advised that although no change is being recommended to his RE code by the Board, this does not mean that he is disqualified from reenlistment. The RE-3 code he was assigned applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. Therefore, if the applicant still desires to reenlist, he should contact a local recruiter to determine his eligibility. Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes.

7. 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

_MB___ ___HOF__ ___AO__ DENY APPLICATION

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

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INDEX

CASE ID	AR
SUFFIX
RECON
DATE BOARDED	2003/10/16
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1999/07/12
DISCHARGE AUTHORITY	AR 635-40 para 4-24b(3)
DISCHARGE REASON	Disability, severance pay
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.