RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2008
	DOCKET NUMBER:  AR20070017357 


	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.

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	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 Reentry (RE) code be changed from RE-4 to RE-1 so that he can enlist in the Army.  He also requests that any physical profiles be eliminated.  

2.  The applicant states that the reason for his discharge from the Army was chronic pain in his left knee.  His knee has been rehabilitated since his discharge and he has been given a clean bill of health.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); his DD Form 4 (Enlistment/Reenlistment Document); his DA Form 2-1 (Personnel Qualification Record - Part II); his Medical Evaluation Board (MEB) Proceedings; his Physical Evaluation Board (PEB) Proceedings; a letter from his physician; a letter from a major general; a DA Form 638-1 (Recommendation for Award); a supplemental letter; and a letter from his wife.  

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 10 July 1991 for a period of 4 years and 17 weeks.  After completion of one station unit training at Fort Benning, Georgia, he was awarded military occupational specialty (MOS) 11C (indirect fire infantryman).  He served in Germany and was promoted to specialist in September 1993.

3.  An MEB evaluated the applicant on 18 August 1994 and he was diagnosed as having chronic pain in his left knee.  He was referred to a PEB.

4.  On 13 September 1994, an informal PEB evaluated the applicant and diagnosed him as having chronic retropatellar [inflammation of the patellar tendon in the knee which results in pain and/or discomfort] pain in the left knee. The PEB determined that the applicant was physically unfit for duty and recommended that he be separated with severance pay with a combined rating of zero percent.  The applicant concurred with the findings and recommendations of the PEB.  

5.  The applicant was discharged on 20 October 1994 under the provisions of Army Regulation 635-40, paragraph 4-24b(3) by reason of physical disability with severance pay.  He completed 3 years, 3 months, and 11 days of active military service.

6.  His DD Form 214 shows he was issued an RE code of RE-4 and a Separation Program Designator (SPD) code of "JPL" (Disability, Severance Pay).

7.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-24b(3) lists separation for physical disability with severance pay.

8.  Army Regulation 635-5-1 (SPD Codes) prescribes 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 separation program designator “JFL” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Disability, Severance Pay” and that the authority for discharge under this separation program designator is “AR 635-40, paragraph 4-24b(3)."  

9.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents), in effect, at the time, established RE code 3 as the proper reentry code to assign to Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(3) for disability, severance pay.

10.  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 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.

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

12.  RE-1 applies to a person completing his/her term of active service who is considered fully qualified to reenter the U.S. Army.  

13.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged on 20 October 1994 under the provisions of Army Regulation 635-40, paragraph 4-24b(3) by reason of physical disability with severance pay.

2.  The applicant's DD Form 214 shows he was separated with a separation code of "JFL" and was assigned an RE code of RE-4.  However, RE code 3 is the appropriate RE code for a Soldier separated under the provisions of Army Regulation 635-40, paragraph 4-24b(3) for disability, severance pay.

3.  It appears that an administrative error has occurred in this case regarding the applicant’s RE code of RE-4.  Therefore, it would be equitable to change his RE code from RE-4 to RE-3.  The applicant may apply for a medical waiver to enlist.  Since enlistment criteria change, and since an individual has the right to apply for a waiver, the applicant should periodically visit his local recruiting station to determine if he should apply for a waiver.  

4.  The applicant’s service records do not contain any physical profiles; therefore, there is insufficient evidence on which to base elimination of physical profiles.  It would be logical to presume he had a profile for his knee.  However, given he did have a knee condition when he separated, any such profile would have been properly issued.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

x______ x______  x______  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing his RE code of RE-4 to RE-3 on his DD Form 214.

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 changing his RE code from RE-4 to RE-1 and by eliminating any physical profiles.




	x________
          		CHAIRPERSON




INDEX

CASE ID
AR20070017357
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.