RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060012232 


	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.


	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 be changed from RE-4 to RE-3.

2.  The applicant states, in effect, that the RE code of RE-4 is not consistent with his other discharge information.  He also states that he is looking to reenlist and was shown his RE code of RE-4.  He was discharged for a physical disability with a separation code of JFL, and with a 10 percent disability rating.  He feels he has more to offer the United States Army. 

3.  The applicant provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 22 November 1985, the date of his discharge from active duty.  The application submitted in this case is dated 17 August 2006.

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.  The applicant's military records show that he enlisted in the Regular Army as a private, in pay grade E-1, on 1 February 1983, for 4 years.  He completed basic and advanced training and was awarded primary military occupational specialty (MOS) 11B, light weapons infantryman, on 1 September 1984.  He was promoted to pay grade E-4 on 1 February 1985.

4.  On 23 January 1985, the applicant was issued a permanent profile of 113111, due to bilateral knee pain.  His assignment limitations were no running, no walking or marching over 30 minutes, no knee bends, or squatting.  The permanent change in the physical profile required a change to the applicant's MOS duty assignment because the assignment limitations that were applied prohibited the applicant from performing his duties on an operational "A" Team.  

5.  The applicant's unit commander commented on the profile that, "Special Forces Soldiers must routinely march over difficult terrain, for long durations, 
carrying heavy loads, with minimal to no outside support from other units.  The applicant could not do the physical training required, much less be deployed on operations with a detachment."

6.  On 9 April 1985, a MOS/Medical Retention Board (MMRB) evaluated the abilities of the applicant to perform the physical requirements of his primary MOS.  The MMRB recommended that the applicant be referred to the Army's Physical Disability System.  The appropriate authority approved the findings and the recommendations of MMRB on the same day.

7.  On 23 April 1985, a MMRB, based on a thorough review of the applicant's most recent permanent physical profile, dated 23 January 1985, and all other pertinent records and reports, determined that the limitations imposed by the applicant's permanent profile were so prohibitive, they precluded his retention and reclassification into any MOS in which the Army had a requirement.  The MMRB directed he be scheduled for a Medical Evaluation Board (MEB).  The MMRB also determined that the applicant's case would be forwarded to a Physical Evaluation Board (PEB) regardless of the MEB findings and recommendation.  

8.  A certificate from the records custodian, dated 21 June 1985, certified that the applicant was scheduled to be separated from the service on 31 January 1987.

9.  An unclassified document, dated July 1985, Subject: Line of Duty Determination, stated the service member (SM) allegedly sustained an injury to his left knee while standing up in a “TA 50” (sic) which was packed full of people and field gear.  The injury was caused by the weight leaning against the SM.  SM was treated and released from USA hospital, Fort Benning, Georgia.  The SM was currently undergoing physical evaluation proceedings for Chondromalacia, both knees and chronic low back pain.

10.  A Standard Form 88, Report of Medical Examination, dated 8 July 1985, found the applicant not qualified for further military service. 

11.  On 8 July 1985, the applicant appeared before a MEB.  The MEB considered the applicant's conditions of, "Chondromalacia, severe, both knees, status post bilateral surgical procedures with constant pain which limits activities.  Positive findings on examination and a positive bone scan.  Chronic low back pain."  The MEB stated, in effect, that the applicant had constant knee pain which had not been relieved by surgical procedures or conservative management.  The pain interfered with his activities and his work and did not allow him to meet the physical requirements of the Army.  The applicant's prognosis for recovery was poor as long as he was on active duty.  The MEB found the applicant unfit for duty in accordance with Army Regulation 40-501, paragraph 3-14b and recommended forwarding of the case to the PEB for further disposition.

12.  On 16 July 1985, the applicant elected not to continue on active duty under Army Regulation 635-40 and concurred with the findings and recommendations of the MEB.

13.  On 22 July 1985, a PEB convened and considered the applicant's condition of chondromalacia, both knees; rated as degenerative arthritis in two or more major joints and chronic low back pain; subjective symptoms only.  The PEB noted that the applicant was physically unfit because of continued complaint of knee pain following surgical corrective procedures.  Chondromalacia had been confirmed by positive findings on examination and by a positive bone scan.  The applicant's medical condition precluded meeting the physical demands required in combat MOSs.  Future improvement was not expected.  The PEB recommended a disability percentage rating of 10 percent and that the applicant be separated with severance pay, if otherwise qualified.  

14.  On 7 August 1985, the applicant non-concurred with the findings and recommendations of the PEB, and requested a formal hearing with personal appearance before the PEB.

15.  On 2 October 1985, the applicant, after conferring with his legal counsel, concurred with the findings and recommendations of the PEB held on 22 July 1985.

16.  The applicant was honorably discharged on 22 November 1985, in pay grade E-4, under the provisions of Army Regulation 635-40, paragraph 4-24e(3), physical disability with severance pay.  He was credited with 2 years, 9 months, and 22 days total active service.  Item 18 (Remarks), of his DD Form 214, states that he was paid severance pay in the amount of $5301.00.  Item 26 (Separation Code) states "JFL" and Item 27 (RE Code) states RE-4.

17.  Army Regulation 40-501 provides policy on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 3 lists the various medical conditions and physical defects that may render a Soldier unfit for further military service.  Paragraph 3-4 pertains to general policy.  It states that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the service.  It also states that physicians are responsible for referring Soldiers with conditions listed in this chapter to an MEB.  It is crucial that MEBs are complete and reflect all of the Soldier's medical problems and all physical limitations the Soldier has.  Determination of fitness or unfitness will be made by a PEB.  The PEB, under the PDA (Physical Disability Agency), will consider the results of the MEB, as well as the requirements of the Soldier's MOS in determining fitness.

18.  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 MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.

19.  PEBs 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.

20.  Army Regulation 635-40 also states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

21.  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, in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE Codes.

22.  RE-4 applies to persons separated from the last period of service with a non-waivable disqualification.  This included anyone with a Department of the Army imposed bar to reenlistment in effect at the time of separation, or separation for any reason with 18 year or more active Federal service.  Members separated with RE Code 4 are ineligible for enlistment.  

23.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

24.  Army Regulation 601-201, Chapter 3-10, also provides that RE Codes may be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE Codes would be processed for a waiver at their request, if otherwise qualified, and a waiver is authorized.  

25.  Army Regulation 635-5-1 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 (SPD) to be used for these stated reasons.  The regulation shows that the SPD for "JFL," as shown on the applicant’s DD Form 214, is appropriate for involuntary discharge when the narrative reason for discharge is "Disability, Severance Pay" and that the authority for discharge under this SPD is Army Regulation 635-40, paragraph 4-24b(3). 

26.  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 "JFL" has a corresponding RE Code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant was honorably discharged on 22 November 1985, under the provisions of Army Regulation 635-40, Paragraph 4-24e, due to Physical Disability with Severance Pay.  He was issued a Separation Code of "JFL" that has a corresponding RE Code of "3."  However, his DD Form 214 shows an RE Code of "4." 

2.  The applicant's RE Code of "4" is not consistent with the basis for his separation.  Therefore, it is recommended that the applicant's records be corrected to show the RE Code of "3" 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 "3."

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

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 November 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 November 1988.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

__KLW__  ___E.F.__  _CD____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for 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 "3" in item 27 (Reentry Code) of his DD Form 214, dated 22 November 1985.




____Kenneth Wright_____
          CHAIRPERSON




INDEX

CASE ID
AR20060012232
SUFFIX

RECON

DATE BOARDED
20070327
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
100.03
2.

3.

4.

5.

6.