RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20070014209 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 Separation Program Designator (SPD) code be changed from “JFR” so that he may obtain an Active Guard Reserve (AGR) position in the District of Columbia Army National Guard (DCARNG).

2.  The applicant states, in effect, that he joined the Army National Guard in 2004 with a waiver and has since reclassified to military occupational specialty (MOS) 88M (Motor Transport Operator).  The applicant states that he has served in Iraq and is currently serving in Kuwait as an 88M.  He continues to state, in effect, that between his deployments he did several ADWS (Active Duty Special Work) tours since January 2005.  He states that he applied for an AGR position in September 2007 and was told by “Human Resources” that his SPD code disqualifies him from competing for any positions in the AGR program.  He is therefore requesting that his SPD code be changed so he can compete for AGR positions.

3.  The applicant provides a copy of his DD Form 214 (Certificate or Release or Discharge from Active Duty) in support of this application.  

CONSIDERATION OF EVIDENCE:

1.  On 31 March 1993, the applicant enlisted in the Regular Army for a period of 3 years.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).  The highest grade he held was Private (PV2/E-2).

2.  On 15 December 1992, the Commander, 4th Battalion, 22nd Infantry Regiment, 25th Infantry Division, Schofield Barracks, Hawaii, submitted a memorandum requesting that the applicant be medically discharged from the Army because his existing profile precluded him from performing basic Soldier skill and functional activities.  The memorandum stated that the applicant was working in his PMOS, 11B, but only in a very limited capacity and experienced problems during any physical activity.

3.  The DA Form 3349 (Physical Profile) shows that the applicant received a permanent profile that was authenticated on 18 December 1992 for bilateral knee pain, which prohibited the applicant from running, jumping, marching, performing squats, knee bends, or kneeling. 



4.  The (Military Review Board) MEBD proceedings, dated 30 December 1992, shows that the MEBD found that the applicant had bilateral knee pain; the approximate date of origin was 1991 as the result of a prior to service fall which resulted in a right patellar contusion and also a contusion of his knee when he struck it against the tailgate of a five-ton truck.  The MEBD proceedings also stated that the present bilateral knee pain makes him unable to perform the duties of an infantryman.  The MEBD concluded that the applicant was unfit for further military duty in accordance with Army Regulation 40-501 and recommended that he be referred to the Physical Examination Board (PEB) for further adjudication

5.  Item 12 of the DA Form 3947 (MEB Proceedings), dated 22 January 1993, show that the applicant was present at his MEBD and Item 15 of the DA Form 3947 shows that the applicant did not desire to remain on active duty in accordance with Army Regulation 635-40.    

6.  On 1 February 1993, the PEB found the applicant was physically unfit due to bilateral retropatellar pain syndrome with normal x-rays and full range of motion. His functional limitations in maintaining prolonged field marching with LBE (load bearing equipment) and weapon, caused by the physical impairments made him unfit to perform the duties of a PV2 in the MOS of an infantryman.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5003.  The PEB found the Soldier to be physically unfit and recommended that he be separated from the Service without disability benefits.  

7.  On 16 February 1993, the Army’s Personnel Command message, subject: ENL DISABL SEP/W/O, authorized the immediate discharge of the applicant for physical disability without severance pay, under the provisions of Army Regulation 635-40, chapter 4-24b (4) based on an approved Physical Evaluation Board (PEB) recommendation.  

8.  On 11 March 1993, the applicant was honorably discharged from the Regular Army.  His DD Form 214 shows that he was discharged under the provisions of Army Regulation 635-40, chapter 4-24b (4), for physical disability without severance pay.  He was assigned an SPD Code of "JFR" and an RE Code of RE-3.  At the time of the applicant’s separation on 11 March 1993 his physical profile was recorded as 1-1-3-1-1-1, indicating a physical profile associated with his lower extremities.

9.  On 12 November 2004, the applicant enlisted in the ARNG.  Section VI (Remarks) of the applicant’s DD Form 1966/4 (Record of Military Processing – Armed Forces of the United States) shows that he received a NGB waiver that was approved on 5 November 2004.   

10.  Army Regulation 635-5-1 (SPD Codes), in effect at the time, provided 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.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) established RE Codes to be assigned for each SPD.  

11.  A separation code of "JFR" applies to persons who were involuntarily discharged under the provisions of chapter 4, Army Regulation 635-40.  The SPD/RE Code Cross Reference Table shows that an RE code of RE-3 is the applicable RE code assigned for an SPD of "JFR."

12.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. 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-1 and RE-2 permit immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his SPD code should be changed because he wants to be eligible to enlist full-time in the AGR.  However, the applicant provides insufficient documentary evidence to support his claim.

2.  The applicant’s record confirms he was separated under the provisions of chapter 4, Army Regulation 635-40, by reason of a physical disability without severance pay which was determined by a medical board.  It further shows that based on this authority and reason for his separation, he was appropriately assigned a SPD code of JFR and corresponding RE code of 3 in accordance with the applicable regulations

3.  The applicant has not provided sufficient documentation to support his contention that the evaluation and the rating rendered by the PEB was incorrect. Therefore, he is not entitled to a change in his SPD Code.

4.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that his disability was properly rated in accordance with the VASRD.  His separation with without severance pay was in compliance with applicable laws and regulations.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

RML_____   GJP__      SWF____  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.




      ______R M L____
                CHAIRPERSON

      


ABCMR Record of Proceedings (cont)                                         AR20070014209



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508