RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 December 2004
      DOCKET NUMBER:  AR2004106200


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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, in effect, that his reentry (RE) code of RE-4
be changed to RE-1.

2.  The applicant states, in effect, that his left knee disability, for
which he received a 10 percent disability rating, is not bothering him
anymore.   He states that since this condition was the basis for his being
assigned an RE-4 code, he would like the code changed at this time.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 5 June 1991.  The application submitted in this case is
dated 22 March 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 limitation 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.  The applicant’s record shows that he enlisted in the Regular Army and
entered active duty on 28 July 1971.  He was trained in, awarded and served
in military occupational specialties (MOSs) 31L (Wire Systems Installer)
and 36M (Switching Systems Operator).  The highest rank he attained while
serving on active duty was sergeant (SGT).

4.  On 19 February 1991, a Physical Evaluation Board (PEB) convened to
consider the applicant’s case.  The PEB found the applicant was physically
unfit and recommended the applicant receive a combined disability rating of

50% based on a left knee condition.  The PEB further recommended the
applicant be placed on the Temporary Disability Retired List (TDRL).  The
applicant concurred with the findings and recommendations of the PEB and
waived a formal hearing of his case.
5.  On 5 June 1991, the applicant was released from active duty for the
purpose of being placed on the TDRL.  The separation document (DD Form 214)
he was issued upon his separation confirms he was separated under the
provisions of Army Regulation 635-40, by reason of physical disability-
temporary.  The separation document also shows the applicant was assigned a
separation program designator (SPD) code of SFK and an RE code of RE-4.

6.  On 11 December 1992, a PED convened to evaluate the applicant’s case.
It found he was physically unfit for service based on his knee condition;
however, it recommended a reduction in his disability rating to 10%.  As a
result, the PEB recommended the applicant be removed from the TDRL and
discharged by reason of physical disability.  On 16 February 1993, the
applicant accepted the 10% disability rating and waived a formal hearing of
his case.

7.  On 18 March 1993, Orders Number D51-08, issued by the Total Army
Personnel Command (PERSCOM) directed the applicant’s removal from the TDRL
and discharge because of physical disability.

8.  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.  RE-4 applies to persons who are permanently
disqualified for continued Army service.

9.  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.  It states, in
pertinent part, that the SPD code of SFK is the appropriate code to assign
to soldiers separated under the provisions of Army Regulation 635-40, by
reason of physical disability-temporary.  The SPD/RE Code Cross Reference
Table included in the regulation establishes RE-4 as the proper code to
assign members separated with this SPD code.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his RE-4 code be changed to RE-1 was
carefully considered.  However, by regulation, the RE-4 code assigned the
applicant was the proper code to assign members separating under the
provisions of Army Regulation 635-40, by reason of physical disability.
Further, the applicant retained a physical disability rating when he was
removed from the TDRL and discharged because of his physical disability.
As a result, the RE-4 code was and still is appropriate based on the
authority and reason for his separation.

2.  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 this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 March 1993, the date of his
discharge because of physical disability.  Therefore, the time for him to
file a request for correction of any error or injustice expired on 17 March
1996.  However, he 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

__MDM__  __JED__  __JBG___  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.




            ____Mark D. Manning_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106200                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/12/07                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1991/06/05                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |TDRL                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  04   |100.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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