IN THE CASE OF:	  

		BOARD DATE:	       9 December 2008

		DOCKET NUMBER:  AR20080015044 


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 an upgrade of her reenlistment eligibility (RE) code from RE-4 to RE-3 so she may reenter the Army.

2.  The applicant states, in effect, that she underwent a physical evaluation board (PEB) that initially placed her on the Temporary Disability Retired List (TDRL) in May 2004.  She received an RE-4.  When she returned for a reexamination, she was found fit for duty and removed from the TDRL; however, she did not reenlist. She would now like to reenter the service and wants her RE code changed.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 May 2004, and a copy of the U.S. Physical Disability Agency (USPDA), Washington, DC, Orders D284, dated 10 October 2005, in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she enlisted in the Regular Army (RA) for a period of 4 years on 21 January 1997.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 21U (Topographic Analyst).  The highest rank/grade she attained during her military service was sergeant.

2.  The applicant’s records also show she served in Iraq from 28 March 2003 to 16 November 2003.

3.  The applicant’s awards and decorations include the Army Commendation Medal, the Army Achievement Medal, the Global War on Terrorism Service and Expeditionary Medals, the Good Conduct Medal (2nd Award), the National Defense Service Medal, the Noncommissioned Officer Development Ribbon, the Army Service Ribbon, the Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Driver and Mechanic Badge with Operator-S Bar.

4.  The facts and circumstances surrounding the applicant’s illness/injury, medical evaluation board (MEB) and/or PEB are not available for review with this case.  However, the DD Form 214 she was issued shows she was honorably separated and placed on the TDRL on 31 May 2004 in accordance with paragraph 4-24B(2) of Army Regulation (AR) 635-40 by reason of temporary disability.  This form also shows she completed 7 years, 4 months, and 10 days of creditable military service.  Item 27 (Reentry Code) shows the entry "4."

5.  On 28 August 2006, an informal TDRL PEB convened at Fort Lewis, Washington, and determined that the applicant's medical condition of acute renal failure from obstructive stone disease had improved to the extent that she was found fit for duty in her rank and primary specialty.  However, the applicant did not concur with the findings and recommendations of the PEB and demanded a formal hearing of her case.  

6.  On 10 October 2006, the USAPDA, Washington, DC, published Orders 
D284-04, indicating that the applicant was found fit for duty and removing her from the TDRL, effective 15 November 2006.

7.  There is no evidence in the applicant’s records that she reenlisted after her removal from the TDRL. 

8.  AR 635-200 (Personnel Separations) states, in pertinent part, 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.  AR 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the US Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

9.  AR 601-210 governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the RA, the USAR, and the Army National Guard (ARNG) for enlistment.  Section XII of this regulation governs special processing for Soldiers removed from the TDRL.  It states, in pertinent part, that as the result of a periodic physical examination, a former Army enlisted member may be determined physically fit for return to duty.  If so, the member may be enlisted in the RA or USAR when his or her name has been properly removed from the TDRL and if requirements of this section are met.

	a.  Enlistments within 90 days of removal from the TDRL will be made without regard to basic enlistment qualifications for prior service (PS) persons described in chapter 3 of this regulation.  Such persons will be enlisted in the permanent pay grade held on the day before the date their names were placed on the TDRL. Enlistment of such persons will be made without medical examination if:

		(1)  no intervening illness or injury since the examination resulted in removal from the TDRL; and

		(2)  the person signs a statement to that effect on DA Form 3283 (Statements of Member Removed from the Temporary Disability Retired List).

Persons who have incurred an illness or injury since the examination resulting in their removal from the TDRL must undergo a complete medical examination. They must qualify for enlistment under medical standards given in chapter 3 of AR 40-501.  (A person does not have to meet medical standards for the specific disability that caused his or her name to be placed on the TDRL).  Persons will be enlisted for 3 years in the RA.  Enlistment must be in the same component from which the Soldier was placed on TDRL.  The Military Entrance Processing Station (MEPS) will complete the DD Form 4 (Enlistment/Reenlistment Armed Forces of the United States) and publish enlistment orders.  Assignment for MOS-qualified applicants, regardless of rank, will be obtained from the Army Human Resources Command (HRC).  Enlistment will be accomplished in the same manner as all other PS enlistment.  

	b.  Former enlisted members who do not enlist in their respective component within 90 days of removal from the TDRL must meet all PS standards and qualifications at time of enlistment.  Medical waivers for RA and USAR enlistment may be considered for former enlisted member if (a) their physical condition has improved so that they meet retention criteria for active duty in AR 635-40; and (2) their names consequently have been removed from the TDRL.  Requests for medical waivers will be sent to the approving authority.  Include with waiver requests (1) DD Form 2808 (Report of Examination) and DD Form 2807–1 (Report of Medical History); (2) Copy of the PEB proceedings and exhibits that caused the member’s removal from the TDRL; (3) Reports of subsequent and current treatment; (4) Reports of x-ray, orthopedic, surgical, medical, or other consultations; (5) Statement by a medical officer on the degree that the disability is incapacitating, the person's ability to care for his or her own needs, the person’s ability to perform useful service without undue hospitalization, and any prosthesis being used.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the MEB and/or PEB that recommended placing her on the TDRL.  However, it appears that the applicant’s temporary retirement was based on the fact that she underwent a PEB that found her physically unfit to perform duties in her grade and specialty and recommended placing her on the TDRL.  

2.  The applicant’s RE code was assigned based on the fact that she was separated under the provisions of paragraph 4-24b(2) of AR 635-40 due to her physical disability.  Absent the unfitting medical conditions, there was no fundamental reason to convene a PEB.  The underlying reason for her discharge was her medical disability that resulted in her temporary retirement.  The only valid narrative reason for separation permitted under that paragraph is "Retirement" and the appropriate RE code associated with this discharge is 
RE-4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant subsequently underwent a TDRL PEB that found her fit for duty and removed her from the TDRL.  She was given the option to return to duty with her consent; however, she did not reenlist.  Nevertheless, the option for the applicant to enlist remains open to her even with an RE-4.

4.  The Army Board for Correction of Military Records does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if she desires to enlist, she should contact a local recruiter and discuss the provisions of paragraph 3-7 and section XII of 
AR 601-210 which prescribe special processing for members removed from the TDRL.  Recruiters can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s RE code.

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)                                         AR20080015044





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ABCMR Record of Proceedings (cont)                                         AR20080015044



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