IN THE CASE OF:	   

		BOARD DATE:	        4 December 2008 

		DOCKET NUMBER:  AR20080007906 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his reentry (RE) code be changed. 

2.  The applicant states that the DD Form 214 (Certificate of Release or Discharge from Active Duty) in question was issued when he was placed on the Temporary Disability Retired List (TDRL).  He contends that approximately one year after he was placed on the TDRL he was reevaluated and discharged; however, he was not given a new DD Form 214 reflecting this new status.  He states that in March 2008 he went to a recruiter to enlist.  The recruiter pulled a "REDD" report on him and said everything was in order (i.e., an RE code of 1).  However, when the recruiter saw his DD Form 214 with an RE code of 4 his enlistment was stopped immediately.  

3.  The applicant provides a copy of his DD Form 214; orders removing him from the TDRL; and a copy of his "REDD" report which shows "1" for reenlistment eligibility.

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.  Having prior service, the applicant enlisted in the Regular Army on 9 August 1984 and trained as a utility equipment repairer.  On 13 March 1991, he was released from active duty and placed on the TDRL the following day.  

3.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-40, PARA [paragraph] 4-24e(2)."  Item 
26 (Separation Code) on his DD Form 214 shows the entry, "SFK."  Item 
27 (Reentry Code) on his DD Form 214 shows the entry, "4."  Item 
28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "PHYSICAL DISABILITY-TEMPORARY."

4.  On 28 January 1992, the applicant was removed from the TDRL and separated with severance pay (20 percent).   

5.  Army Regulation 635-5-1 (Separation Program Designator 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 designator codes to be used for these stated reasons.  The regulation in effect at the time stated the reason for discharge based on separation code "SFK" is "Physical disability – temporary" and the regulatory authority is Army Regulation 635-40, paragraph 4-24e(2).  

6.  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 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.  

7.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

8.  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.

9.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

10.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 2 October 1989, shows that SPD [Separation Program Designator] "SFK" will be issued an RE code of 4.  

11.  Army Regulation 601-210, paragraph 4-5(b) states any applicant who was last separated or discharged from any Component of the Armed Forces for medical reasons with or without disability will require a waiver for enlistment into the Regular Army or Army Reserve.  Paragraph 4-25(m) states persons receiving retired, retirement, or retainer pay, except for combat-wounded personnel, have a nonwaivable disqualification.

12.  Paragraph 1-6 of Army Regulation 40-501(Standards of Medical Fitness) states that examinees initially reported as medically unacceptable by reason of medical unfitness may request a waiver of the medical fitness standards in accordance with the basic administrative directive governing the personnel action.  Upon such request, the designated administrative authority or his or her designees for the purpose may grant such a waiver in accordance with current directives.  The Office of The Surgeon General provides guidance when necessary to the review and waiver authorities on the interpretation of the medical standards and appropriateness of medical waivers.  The Secretary of the Army is the waiver authority for accession. 

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  Paragraph 2-1b(3) specifically states that a DD Form 214 will not be prepared for a Soldier removed from the TDRL.  (emphasis added)

14.  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.  Evidence of record shows the applicant was separated from active duty and placed on the TDRL.  By regulation, this mandated that he be assigned an RE code of 4 upon his release from active duty.  Therefore, his RE code was administratively correct and in conformance with applicable regulations at the time of separation.  
2.  Evidence of record shows the applicant was removed from the TDRL on 
28 January 1992 and separated with severance pay (20 percent).  Therefore, there is no basis for granting the applicant’s request.  However, since the applicant is no longer drawing retired pay, he might be eligible to request that the recruiter process a medical waiver.     

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.



      _________XXX_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007906



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ABCMR Record of Proceedings (cont)                                         AR20080007906



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