RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         19 JULY 2005
      DOCKET NUMBER:  AR20040009006


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Lawrence Foster               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his RE (Reentry code) 4 on his 1991
separation document be corrected to an RE code which would permit him to
reenlist.

2.  The applicant states that 5 years after his discharge he underwent
medical tests at Fort Campbell, Kentucky and was found fit for active duty.
 He states, however, that his RE code was never changed.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 April 1991.  The application submitted in this case is
dated
28 September 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant entered
active duty on 4 November 1987.  He was discharged on 10 April 1991 by
reason of physical disability and his name was placed on the TDRL
(Temporary Disability Retired List) the following day.  His separation
document indicates that the applicant received an “RE-4” when he was
discharged in 1991 and his separation code was recorded as “SFK.”

4.  On 30 November 1994 the applicant’s name was removed from the TDRL.  A
30 November 1994 memorandum notes that after removing the applicant’s name
from the TDRL he was to be afforded an opportunity to reenlist in the
Regular Army.  An election form was attached to the memorandum.  The copy
of the election form contained in files available to the Board was not
completed.




5.  Other than his separation document, his 1991 discharge orders, the
orders which removed the applicant’s name from the TDRL in 1994, and the
memorandum with election option form, there were no other documents in
available records associated with the applicant’s disability processing.

6.  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.

7.  Pertinent Army regulations also 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.

8.  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.

9.  A “cross-reference” chart, provided by officials from the separations
branch at the Army’s Human Resources Command-Alexandria, confirms that “RE-
4” is the appropriate RE code for individuals who receive an SPD code of
SFK.



10.  Army Regulation 601-210 states that individuals enlisting in the
Regular Army within 90 days of removal from the TDRL will be made without
regard to basic enlistment qualifications for prior service persons.  It
also states that enlistment of former enlisted members who do not reenlist
in their respective component within 90 days of the removal date from the
TDRL must meet all prior service standards and qualifications at the time
of enlistment.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant may have been found fit following his TDRL
examination and his name subsequently removed from the TDRL, that action
did not change the basis for his 1991 discharge from active duty, and as
such, the information contained on that separation document would not have
been “updated” to reflect the applicant’s final disposition in 1994.

2.  Whether or not the applicant was provided an opportunity to reenlist in
the Regular Army in 1994, or chose not to exercise that opportunity, such
action would still not show any error or injustice in the RE code reflected
on his 1991 separation document, nor dictate a change in the code.

3.  The applicant was separated from active duty 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 1991 separation.  The fact that he was subsequently found fit does not
change the applicant's original reason for his 1991 separation from active
duty and does not serve as a basis to change his correctly assigned RE
code.

4.  In order to justify correction of a military record the applicant must
show, 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 April 1991; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
9 April 1994.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TK    _  ___JM __  ___LF___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____ Ted Kanamine_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009006                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050719                                |
|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.                      |                                        |


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