IN THE CASE OF:
BOARD DATE: 18 September 2008
DOCKET NUMBER: AR20080011709
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 to RE code 1.
2. The applicant states, in effect, that he is no longer on the temporary disability retired list (TDRL). He states that the medical problem that caused his situation has improved and he no longer has a problem.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 23 November 2005; U.S. Army Physical Disability Agency Orders D040-03, dated 9 February 2007; and a physical examination document from the Kempsville Primary Medical Care Center, dated 12 June 2008.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 3 September 1997 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 88M (Motor Transport Operator). The applicant was honorably discharged on 6 September 2000 and immediately reenlisted on 7 September 2000 for a 6-year term of service.
2. The applicant's military medical records are not available.
3. On 23 November 2005, the applicant was honorably released from active duty after completing 8 years, 2 months, and 23 days of creditable active service and was placed on the TDRL on 24 November 2005.
4. The applicants DD Form 214 with the period ending 23 November 2005 shows in item 25 (Separation Authority) the entry AR 635-40, PARA 4-24b(2), in item 26 (Separation Code) the entry SFK, and in item 27 (Reentry Code) the entry 4R.
5. On 9 February 2007, the applicant was removed from the TDRL with a disability rating of 10 percent and discharged.
6. Army Regulation 601-210 (Regular Army and Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the US Army Reserve. Table 3-6 of the regulation in effect at the time states that RE code 1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. RE code 4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification. Additionally, Army Regulation 635-5 (Separation Documents) Separation Program Designator (SPD)/RE code cross reference table at that time stated when the SPD was SFK then RE code 4 would be given.
7. 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.
8. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), the regulation in effect at the time, 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 SFK as shown on the applicants DD Form 214 specified the narrative reason for discharge as Physical disability-temporary.
9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), the version in effect at the time, paragraph 4-24b(3) authorizes the issuance of orders when the final disposition is separation for physical disability
with severance pay (10 United States Code 1203 or 1206). Paragraph 4-24b(2) authorizes the issuance of orders when the final disposition is placement on the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his RE code should be changed to RE code 1. In accordance with the provisions of Army Regulation 635-5-1, the applicant was assigned an RE code 4R based on being placed on the TDRL. Army Regulation 601-210 specifically states that a RE code of 4R is a nonwaivable disqualification for enlistment. Therefore, the assigned RE code was appropriate. However, since he is no longer drawing retired pay, he may be eligible for a waiver to enlist. Recruiters should be made aware that his later discharge for physical disability with severance pay supersedes his placement on the TDRL.
2. The applicants DD 214 with the period ending 23 November 2005 shows the RE code 4R (i.e. retirement for length of service). By regulation, he should have been assigned an RE code of 4 upon separation from the Army in accordance with Army Regulation 635-5-1. However, to change the applicants RE code to an RE code of 4 would not change the outcome of this case. Since he does not ask for this change, the Board will not change his RE code 4R.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xx____ ___xx___ ___xx___ 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.
_______ _xxxx______ ___
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.
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