RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 August 2007
	DOCKET NUMBER:  AR20070001975 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. Conrad V. Meyer

Chairperson

Mr. Dale E. DeBruler

Member

Ms. Ernestine I Fields

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 correction of his Reentry Eligibility (RE) Code.

2.  The applicant states, in effect, he was alerted for overseas deployment, but due to an injury to his feet he could not deploy because he had not had enough time to recover from the injury.  The applicant also states, in effect, that his superior officer expressed to him that if he could not deploy overseas he would be separated from the Army.  As a result, the applicant states that he received an unacceptable RE Code of RE-3.  The applicant adds, in effect, that he has applied for employment with the Federal Bureau of Prisons as a California Correctional Officer; however, his RE Code prevents him from being accepted for the position without a waiver or change to the RE Code.  The applicant concludes by stating that, with the proper medical treatment, his medical condition has now been corrected.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 18 May 2005, and Department of Veterans Affairs (VA), West Los Angeles VA – Podiatry Department, memorandum, dated 26 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the U.S. Army Reserve (SAR) on 15 April 2002 and entered active duty in the Regular Army (RA) for a period of 3 years on 8 July 2002.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 92F (Petroleum Supply Specialist).  On 8 July 2004, he was promoted to the rank of specialist/pay grade E-4.

2.  The applicant's military service records contain a copy of a Fort Carson Transition Processing Physical Disability Information packet.  This information packet contains, in pertinent part, a copy of the applicant's DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 25 March 2005; Medical Evaluation Board (MEB) Proceedings, dated 11 February 2005; and MEB Narrative Summary, signed 10 February 2005.  In the Military History section of the MEB Narrative Summary, the medical doctor noted, in pertinent part, “[The applicant] came to Fort Carson in January 2003, and deployed in support of Operation Iraqi Freedom from April 2003 until July 2003, returning with his unit.”  She also notes in the Chief Complaint section of this document, “Foot pain” and that, “[h]e deployed to Iraq with his unit and had no significant difficulty although he reports he noted occasional foot pain related to long hours in combat boots.”  The packet also contains a copy of Headquarters, 59th Quartermaster Company, Fort Carson, Colorado, memorandum, dated 23 November 2004, subject: Commander’s Duty Performance Statement for SPC [Applicant’s Name and Social Security Number].  This document shows, in pertinent part, that the unit commander noted that the applicant’s “…condition worsened once he was pulled from training with the Post Boxing Team.  His duty performance was not stellar at the time and his unit had just received orders for deployment in support of Operation Iraqi Freedom III.  The chain of command did notice an increase in visits to the TMC [Troop Medical Clinic] and aid station on field training exercises. Two weeks prior to the unit deploying we received his current permanent profile and pending MEB/PEB.  In my opinion, the upcoming deployment was a contributing factor to the increased visits to the TMC.”  The DA Form 199 shows, in pertinent part, the PEB found the applicant physically unfit and recommended a combined rating of 0 percent and separation with severance pay, if otherwise qualified.  This document also shows that the applicant placed his signature on the document indicating his concurrence with the proceedings and that he waived a formal hearing of his case.  This document further shows that the Supervisory Military Personnel Technician, U.S. Army Physical Disability Agency, approved the PEB Proceedings for the Secretary of the Army on 11 April 2005.

3.  The applicant's military service records contain a DD Form 214 that shows the applicant was honorably discharged on 18 May 2005 and had completed 2 years, 10 months, and 11 days net active service.  Item 18 (Remarks) of this document contains, in pertinent part, the entry, “SERVICE IN KUWAIT AND IRAQ FROM 20030420 – 20030720.”  The applicant’s DD Form 214 also shows, in pertinent part, that the separation authority was Army Regulation 635-40, paragraph
4-24b(3), and the reason for his separation was, "Disability, Severance Pay."  Based on the authority and reason for his separation, the applicant was assigned a Separation Program Designator (SPD) Code of “JFL” and an RE Code of “3.”

4.  In support of his application, the applicant provides a copy of his DD Form 214, with an effective date of 18 May 2005, which shows, in pertinent part, that he was issued an RE Code of “3.”  He also provides a copy of Department of VA, West Los Angeles VA – Podiatry Department, memorandum, dated 26 October 2006, which shows that the applicant was treated by the podiatric department, the treatment was successfully completed, and that he may resume all work and activities with no restrictions or limitations.

5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, United States Code, Chapter 61.  It 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 or her office, grade, rank, or rating.  Paragraph 4-24b of this Army regulation states, in pertinent part, that based upon final decision of the
U.S. Army Physical Disability Agency or Army Physical Disability Board, the
U.S. Army Human Resources Command will issue retirement orders or other disposition instructions, and subparagraph 4-24b(3) authorizes separation for physical disability with severance pay under Title 10, United States Code, sections 1203 and 1206.

6.  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 identifies the SPD Code of “JFL” as the appropriate code to assign RA enlisted Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(3), based on “Disability, Severance Pay.  The SPD/RE Code Cross Reference Table establishes RE-3 as the proper RE Code to assign Soldiers separated with an SPD Code of “JFL.”

7.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides, in pertinent part, 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.  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.

8.  Army Regulation 601-210 also provides, in pertinent part, that RE codes are used for administrative purposes only, and that applicants should be advised that RE codes are not to be considered derogatory in nature, they simply are codes used for identification of an enlistment processing procedure.  This document also provides procedures for the verification of an applicant's prior service.

9.  Army Regulation 601-210 further prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the RA and the USAR.  Paragraph 3-20 (Verification of prior service) provides, in pertinent part, that applicants who are thought to have had, or who claim to have had, PS in any U.S. Armed Force will not be enlisted in the RA or USAR until their PS, if any, is verified.

10.  Army Regulation 601-210 also provides that applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  Recruiters do not have the authority to disapprove a waiver request or to refuse to forward an applicant's request to the approval authority. Commanders cited in this regulation have the authority to approve waivers as appropriate.

11.  The governing Army regulation further provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Prior service applicants requesting enlistment in the Army who have correct RE codes will be processed for a waiver at their request, if otherwise qualified and waiver is authorized.  No requirement exists to change an RE code to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for change to the RE-3 code he received in conjunction with his discharge from the Army was carefully considered.

2.  The evidence of record shows that the applicant’s unit commander noted that 2 weeks prior to the unit deploying he received the applicant’s permanent profile and notice that the applicant was pending MEB/PEB proceedings.  There is no evidence of record, and the applicant fails to provide evidence, to show that his commanding officer expressed that if the applicant could not deploy overseas he would be separated and receive an unacceptable RE Code.

3.  The evidence of record shows that the applicant was separated from the Army based upon physical disability.  The evidence of record confirms the applicant’s disability separation processing was accomplished in accordance with applicable regulations, all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the MEB and PEB proceedings.  The evidence of record also shows that the applicant concurred with the findings and recommendations of the PEB, to include the reason for his separation.

4.  The evidence of record shows the RE Code (i.e., RE-3) that the applicant received was appropriately assigned based on the authority and reason for his separation.  Thus, the assigned RE Code of RE-3 is correct and remains valid.  Therefore, the applicant is not entitled to correction of his records.

5.  The evidence of record indicates that the reason the applicant is requesting change to his RE Code is in order to obtain employment with the Federal Bureau of Prisons as a California Correctional Officer.  However, the U.S. Army does not change an RE Code that was properly and correctly issued based upon civilian employment criteria that an individual may be subject to subsequent to his or her service in the U.S. Army.

6.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___CVM _  ___DED_  ___ERM_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____Conrad V. Meyer______
          CHAIRPERSON




INDEX

CASE ID
AR20070001975
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/21
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20050518
DISCHARGE AUTHORITY
AR 635-40, Paragraph 4-24b(3)
DISCHARGE REASON
Disability, Severance Pay
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
103.0100.0000
2.

3.

4.

5.

6.