IN THE CASE OF:	  

		BOARD DATE:	        29 July 2008

		DOCKET NUMBER:  AR20080009233 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his correct date of birth (DOB) and to change his reentry (RE) code.

2.  The applicant states he was born on 16 September 1971, not on 21 October 1972.  He further states that he was found to be fit for duty and was removed from the Temporary Disability Retired List (TDRL) on 24 February 2006.

3.  The applicant provides a letter, dated 25 March 2005, from the U. S. Army Physical Disability Agency; orders removing him from the TDRL; a DA Form   199 (Physical Evaluation Board (PEB) Proceedings), dated 23 February 2006; a copy of his birth certificate; and his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s DD Form 1966 (Record of Military Processing – Armed Forces of the United States) show his DOB as 16 September 1971.  His DD Form          4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 22 November 1993, shows his DOB as 16 September 1971.

2.  The applicant provided a copy of his birth certificate that shows his DOB as  16 September 1971.

3.  The applicant enlisted in the Regular Army on 13 January 1994.

4.  The applicant’s DD Form 4, dated 3 April 1997, shows his DOB as                16 September 1971.  His DD Form 4, dated 21 October 2000, shows his DOB as 16 September 1971.

5.  The applicant’s DD Form 4, dated 31 October 2002, shows his DOB as        21 October 1972.

6.  On 31 August 2004, the applicant was released from active duty by reason of temporary disability and placed on the TDRL the following day.  His DD Form 214 shows he was given a separation code of SFK (retirement by reason of temporary disability) and an RE code of 4.  Item 5 (Date of Birth) shows his DOB as 21 October 1972.

7.  On 23 February 2006, a TDRL PEB found the applicant to be fit for duty.  Effective 31 March 2006, he was removed from the TDRL.  

8.  Title 10, U. S. Code, section 1202, provides that if a member would be qualified for retirement for disability but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the TDRL with retired pay computed under section 1401 of this title.

9.  Army Regulation 635-5 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.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief,    clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

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 (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.

11.  RE code 4 applies to persons not qualified for continued Army service, and the disqualification is not waivable.  

12.  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. 

13.  The Separation Program Designator (SPD)/Reentry (RE) Codes Cross Reference Table states that when the separation code is SFK then RE code        4 will be given.

DISCUSSION AND CONCLUSIONS:

1.  The preponderance of the evidence indicates that an error was made on the applicant’s DD Form 214 concerning his DOB.  The preponderance of the evidence of record agrees with the applicant’s birth certificate, that he was born on 16 September 1971.  His DD Form 214 should be amended to show his DOB as 16 September 1971.

2.  The DD Form 214 is meant to provide a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

3.  The applicant was released from active duty on 31 August 2004 due to temporary disability and was placed on the TDRL the following day.  Based upon the fact that he was retired, he was given the correct RE code of 4.

4.   However, the evidence also clearly shows that the applicant was found to be fit for duty in February 2006 and was removed from the TDRL in March 2006 by reason of being found fit for duty.  

5.  If it is the applicant’s intent to have his RE code changed so he may enlist, and notwithstanding the normal guidance that the applicant would not be eligible for a waiver due to his RE code of 4, common sense indicates that recruiting officials should be required to process a request for a waiver in his case.  If his intention is to enlist, he should provide the orders removing him from the TDRL and a copy of this Record of Proceedings to recruiting officials.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___xx___  __xx____  ___xx___  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 amending item 5 of his DD Form 214 to show his date of birth as 16 September 1971.

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. 




      _______ _xxxxx_____   ___
       	   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)                                         AR20080009233



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ABCMR Record of Proceedings (cont)                                         AR20080009233



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