RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 April 2008
	DOCKET NUMBER:  AR20070018890 


	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.


x	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) be upgraded from an RE-4 to an RE-3.  

2.  The applicant states, in effect, he is no longer on the Temporary Disability Retired List (TDRL) and would like his RE-4 code changed accordingly based on his honorable discharge.  

3.  The applicant refers to a Department of Veterans Affairs (VA) Letter in support of his application.  

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's record shows that he enlisted in the Regular Army and entered active duty on 18 September 2000.  He was trained in and awarded military occupational specialty (MOS) 96D (Imagery Analyst).  It further shows that he served in Qatar from 1 October 2001 through 21 March 2002, and that he earned the following awards:  Joint Service Achievement Medal; Army Good Conduct Medal; National Defense Service Medal; Global War on Terrorism Service Medal; Global War on Terrorism Expeditionary Medal; Army Service Ribbon; Noncommissioned Officer Professional Development Ribbon; and Driver and Mechanic Badge with Driver-W Bar.  

3.  The applicant's record is void of the Physical Disability Evaluation System (PDES) packet containing the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings and/or specific facts and circumstances surrounding his physical disability processing.  


4.  The record does include Headquarters, III Corps and Fort Hood, Fort Hood, Texas, Orders 175-0227, dated 23 June 2004, which directed the applicant's release from active duty (REFRAD) because of physical disability on 20 July 2004, and his placement on the TDRL on 21 July 2004.  These orders show the applicant's disability was rated at 30 percent.  

5.  The applicant's record also contains a properly constituted separation document (DD Form 214) that shows he was honorably retired, in the rank of sergeant (SGT), under the provisions of Paragraph 4-24b(2), Army Regulation
635-40, by reason of Disability-Temporary, on 20 July 2004.  

6.  The DD Form 214 issued to the applicant upon his disability retirement also shows that based on the authority and reason for his separation; he was assigned a Separation Program Designator (SPD) code of SFK in Item 26 
(Separation Code) and an RE code of 4 in Item 27 (Reentry Code).  The applicant authenticated the separation document with his signature in Item 21 (Signature of Member Being Separated) on the date of his REFRAD.  

7.  The applicant provides a VA Letter, dated 12 March 2007, which indicates he was removed from the TDRL and received severance pay in the amount of $12,729.20, based on his Post Traumatic Stress Disorder (PTSD), and as a result, his VA disability compensation would be reduced until the disability severance pay he received was recouped.   

8.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR).  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-4 applies to persons who have a nonwaivable disqualification.  

9.  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 states, in pertinent part, that the SPD code SFK is the appropriate code to assign to members separated under the provisions of Paragraph 4-24b, Army Regulation 635-40, by reason of Disability-Temporary.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these regulatory provisions.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his disqualification should not prevent him from reentering military service and that his RE code should be changed accordingly was carefully considered.  However, there is insufficient evidence to support his claim.  

2.  By regulation, RE-4 is the proper code to assign to members who are assigned an SPD code of SFK as a result of separation by reason of temporary disability.  Although a PDES packet containing the specific facts and circumstances surrounding the applicant's medical separation processing is not on file, the record does contain a properly constituted DD Form 214 that shows the applicant was retired under the provisions of Paragraph 4-24b, Army Regulation 635-40, by reason of disability-temporary, and that he was assigned an SPD code of SFK and an RE code of 4.  This separation document carries with it a presumption of Government regularity.  

3.  The applicant authenticated the DD Form 214 with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the DD Form 214, to include the SPD and RE code entries, was correct at the time the document was prepared and issued.  

4.  Notwithstanding the applicant's ultimate removal from the TDRL, it appears from the VA letter he provides that he was ultimately discharged by reason of disability with severance pay, and that he continues to suffer from his medical disability.  

5.  Absent any evidence of record or independent medical evidence provided by the applicant that indicates his disability processing was improper or inequitable, it is presumed the RE-4 code assigned was valid at the time of his release from active duty.  As a result, there is an insufficient evidentiary basis to support a change to the RE code.  

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

___x_  __x__  __x__  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.




_____x____
          CHAIRPERSON




INDEX

CASE ID
AR
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

ISSUES         1.

2.

3.

4.

5.

6.