RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 July 2006
      DOCKET NUMBER:  AR20050016446


      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. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Marla Troup                   |     |Member               |
|     |Mr. William F. Crain              |     |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 item 27 (Reentry [RE] Code), of his DD Form
214 (Certificate of Release or Discharge from Active Duty), be corrected to
show the entry "3" instead of the entry "4R."

2.   The applicant states that his RE Code of "4R" should be changed to
enable him to reenter the military and that he would like to continue to
serve this nation.

3.  The applicant provides a copy of his DD Form 214 in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the United States
Army Reserve (USAR) on 15 February 2000, for 8 years, with an established
expiration of term of service (ETS) of 14 February 2008.  He entered active
duty on 24 February 2000, as a light weapons infantryman, for 3 years, with
an established ETS of 23 February 2003.

2.  On 1 February 2001, the applicant was punished under Article 15,
Uniform Code of Military Justice (UCMJ), for wrongful use of cocaine.  His
punishment consisted of a reduction to E-1, forfeiture of $525.00 pay, and
45 days restriction and extra duty.

3.  The applicant was advanced to pay grade E-3 on 1 May 2001.

4.  The applicant was issued a permanent profile of 411111, on 16 August
2001, due to asthma.  His assignment limitations were no exposure to dusty
environments, prohibition from wearing the protective mask, and no
participation in APFT.  He was referred to a medical evaluation board
(MEB).

5.  The applicant appeared before a MEB on 22 October 2001, in the pay
grade of E-3.  He was diagnosed as having Asthma.

6.  The applicant was referred to a Physical Evaluation Board (PEB).  He
was found physically unfit with a 30 percent disability rating.  He
appeared before the PEB on 5 November 2001. The PEB recommend a combined
rating of 30 percent and placement on the TDRL.  On 7 November 2001, the
applicant concurred and waived a formal hearing of his case.

7.  The applicant was reduced to pay grade E-2 effective 13 December 2001
for some unknown reason.
8.  The applicant was honorably discharged on 27 December 2001, under the
provisions of Army Regulation 635-40, paragraph 4-24b(2), for disability,
temporary, in the pay grade of E-2.  He was placed on the Temporary
Disability Retired List (TDRL) effective 28 December 2001, by reason of
physical disability. He had completed 1 years, 10 months, and 4 days of
creditable service.  He was issued an RE Code of "4R" and a separation code
of "SFK."

9.  The applicant reappeared before a PEB on 20 July 2005.  He was found
physically fit for duty with a recommendation that he be returned to duty
as fit.
His PEB contained an "Election Relative to Enlistment" statement which
entitled him to reenlist within 90 days following his removal from the TDRL
in the component and grade in which he was serving prior to placement on
the TDRL.

10.  The applicant was removed from the TDRL effective 5 January 2006.

11.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier's medical status and duty limitations insofar as duty is
affected by the Soldier's status.  A decision is made as to the Soldier's
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the medical evaluation board determines the Soldier does not
meet retention standards, the board will recommend referral of the Soldier
to a physical evaluation board.

12.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier's particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.







13.  Paragraph 4-24 of Army Regulation 635-40 pertains to the disposition
of Soldiers by the U.S. Army Human Resources Command (AHRC) upon the final
decision of the United States Army Physical Disability Agency (USAPDA).  It
states that PERSCOM will dispose of the case by publishing orders or
issuing proper instructions to subordinate headquarters, or return any
disability evaluation case to the USADPA for clarification or
reconsiderations when newly discovered evidence becomes available and is
not reflected in the findings and recommendations. Subparagraph 4-24b(2)
applies to placement on the TDRL.

14.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned reentry 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 reentry codes, including RA
RE codes.

15.  RE 4R applies to persons who are retired for length of service with
15 or more years AFS.

16.  RE–4 applies to persons not qualified for continued service by virtue
of being separated from the service with non-waivable disqualification.

17.  RE-3 applies to persons not qualified for continued Army service and
personnel who are discharged, but the disqualification is waivable.

18.  RE-1 applies to persons completing their term of service (ETS) who are
considered qualified to reenter the Army.

19.  The SPD/RE Code Cross Reference Table provides instructions for
determining the RE code for Active Army Soldiers and Reserve Component
Soldiers separated for cause.  It also shows the SPD code with a
corresponding RE code and states that more than one RE code could apply.
The Soldier’s file and other pertinent documents must be reviewed in order
to make a final determination.  The SPD code of "SFK" has a corresponding
RE code of "4."






20.  Army Regulation 635-5-1, in effect at that time, prescribed the
specific authorities (regulatory, statutory, or other directives), the
reasons for the separation of members from active military service, and the
separation program designators to be used for these stated reasons.  The
regulation shows that the SPD "SFK", as shown on the applicant’s DD Form
214, is appropriate for discharge when the narrative reason for discharge
is "disability, temporary" and that the authority for discharge under this
SPD is "Army Regulation 635-40, chapter 4, paragraph 4-24b(2).

21.  Army Regulation 635-40, paragraph 7-2, provides that an individual may
be placed on the TDRL (for the maximum period of 5 years, which is allowed
by Title 10, United States Code, section 1210) when it is determined that
the individual’s physical disability is not stable and he or she may
recover and be fit for duty, or the individual’s disability is not stable
and the degree of severity may change within the next 5 years so as to
change the disability rating.

22.  Paragraph 7-11, of the same regulation, pertains to disposition of the
TDRL Soldier.  Subparagraph 7-11a(3) states that if a Soldier is determined
physically fit to perform the duties of their office, grade, rank, or
rating (and is otherwise administratively qualified), and is a former RA
enlisted Soldier, subject to their consent, will be reenlisted in their
regular component in the grade held on the day before the date placed on
the TDRL, or in the next higher grade.  If the Soldier does not consent to
reenlistment, TDRL status and disability pay will be ended as soon as
possible.

23.  Title 10, United States Code, section 1211a(3) states, in pertinent
part, that with their consent, any member of the Army or Air Force whose
name is on the TDRL, and who is found to be physically fit to perform the
duties of their office, grade, or rank and is an enlisted member of a
regular component may be reenlisted in the regular grade held when their
name was placed on the TDRL or in the next higher regular enlisted grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was honorably discharged on 27 December 2001, under the
provisions of Army Regulation 635-40, chapter 4, paragraph 4-24b(2), for
disability, temporary, in the pay grade of E-2.  He was placed on the TDRL
effective 28 December 2001.  He was issued a Separation Code of "SFK" that
has a corresponding RE Code of "4".  However, his DD Form 214 shows an RE
Code of "4R."

2.  The applicant's RE Code of "4R" is not consistent with the basis for
his separation.  Therefore, the Board recommends that the applicant's
records be corrected to show the RE Code of "4" which is consistent with
the basis for his separation.  It would now be appropriate to change item
27, of his DD Form 214, to show a reentry code of "4".

3.  The evidence shows that the applicant reappeared before a PEB on
20 July 2005.  He was found physically fit for duty with a recommendation
that he be returned to duty as fit.  The applicant had the option of
reenlisting or declining to reenlist in the RA/USAR within 90 days after he
was removed from the TDRL.  The evidence shows the election form was not
completed by the applicant.

4.  The evidence shows that the applicant was removed from the TDRL
effective 5 January 2006.

5.  It is apparent that the applicant now wishes to reenter the military
and would like to continue to serve the nation; however, the RE Code of "4"
prevents him from reenlisting.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___T____  _WDP___  _WFC __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing a reentry code
of "4" in item 27 (Reentry Code) of his DD Form 214, dated 27 December
2001.





2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
correction of item 27 (Reentry Code), of his DD Form 214, date 27 December
2001, to show a reentry code of "3."




                                  ___William D. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016446                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060720                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20021227                                |
|DISCHARGE AUTHORITY     |AR 635-40, PARA 4-24(B)(2)              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIL REL                              |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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