IN THE CASE OF:	  

		BOARD DATE:	       16 December 2008

		DOCKET NUMBER:  AR20080016094 


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 his reenlistment (RE) code from RE-4 to a more favorable code so he may reenter the Army.

2.  The applicant states, in effect, that he underwent a physical evaluation board (PEB) that initially placed him on the Temporary Disability Retired List (TDRL) in January 1990.  He received an RE-4.  When he returned for a reexamination, he was found fit for duty and removed from the TDRL; however, he did not enlist at that time.  He would now like to reenter the service and wants his RE code changed.  

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 23 January 1990.

	b.  Self-authored letter, dated 26 October 2004.

	c.  Orders 153-1, dated 6 October 1989, and Orders 196-1, dated 20 December 1989, issued by Letterman Army Medical Center, Presidio of San Francisco, California (CA).



	d.  Orders D261-3, dated 2 January 1990, and Orders D249-12, dated 12 December 1991, issued by the U.S. Total Army Personnel Command (TAPC), Alexandria, Virginia (VA).

	e.  Various memoranda for record and conversation records, authored by several individuals on miscellaneous dates.

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 records show he enlisted in the Regular Army (RA) on 24 January 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31M (Multichannel Communications Systems Operator).  He subsequently executed a series of reenlistments in the RA and attained the rank of sergeant.

3.  The applicant’s records also show he completed two overseas tours in Germany and one in Hawaii.  His awards and decorations include the Army Service Ribbon, the Overseas Service Ribbon (3rd Award), the Noncommissioned Officer Professional Development Ribbon with Numeral 2, and the Army Service Ribbon.

4.  On 14 November 1989, the applicant was issued a physical profile for chronic and severe dissociative disorder and right retinal detachment with pneumatic retinopexy with cryotherapy.

5.  On 20 November 1989, the applicant was considered by a medical evaluation board (MEB).  The MEB found he had dissociative disorder, alcohol abuse that existed prior to service, personality disorder that existed prior to service, and right retinal detachment.  The MEB further recommended that he be referred to a 
physical evaluation board (PEB).  The applicant agreed with the MEB's findings and recommendations and indicated that he did not desire to continue on active duty.

6.  On 14 December 1989, an informal PEB was convened in San Francisco
and found the applicant physically unfit due to his dissociative disorder.  The applicant's other medical conditions were also considered by the PEB; however, they were found to be neither unfitting nor ratable.  The PEB rated the applicant at 50 percent and recommended he be placed on the TDRL with reexamination on 31 January 1991.  The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing of his case.

7.  On 2 January 1990, the U. S. Total Army Personnel Command (TAPC) published Orders D261-3, releasing the applicant from assignment and duty effective 23 January 1990 and placing him on the TDRL effective 24 January 1990 by reason of physical disability.  The DD Form 214 he was issued shows he was honorably separated on 23 January 1990 in accordance with Title 10, U.S. Code, sections 1202 and 1273, by reason of temporary disability.  This form   also shows he completed 12 years of creditable military service.  Item 27 (Reenlistment Code) shows the entry “4.” 

8.  On 10 October 1991, by memorandum, the applicant was notified to appear for a formal hearing before the TDRL PEB scheduled on 3 December 1991.  He was also notified on 24 October 1990 to undergo a medical examination. 

9.  On 28 February 1991, by memorandum, the applicant was notified that he failed to report to his periodic physical examination in January 1991 [sic] and was given the opportunity to provide an explanation for his no-show.

10.  On 23 April 1991, by memorandum, the applicant was notified that having failed to appear for a required medical examination as directed and having failed to show just cause for his failure to report, his eligibility to receive disability retired pay was terminated effective 23 April 1991.

11.  On 23 April 1991, the Defense Finance and Accounting Service (DFAS) received information from the U.S. Naval Hospital, Guam, that the applicant appeared for a reevaluation in Guam on 8 March 1991 and that the medical examination packet was transmitted to and received by Tripler Army Medical Center, Hawaii, on 20 March 1991.  As such, TAPC reinstated the eligibility to receive retirement pay, retroactive to 23 April 1991.



12.  On 29 August 1991, an informal TDRL PEB convened in San Francisco, CA, and determined that the applicant's medical condition of dissociative disorder, had not improved to the extent that he was found fit for duty and recommended a combined rating of 10 percent and separation with severance pay.  The applicant did not concur with the PEB's findings and recommendation and demanded a formal hearing with personal appearance.

13.  On 3 December 1991, and subsequent to the applicant's request through his PEB counsel that he be found fit for duty, a formal TDRL PEB convened in San Francisco and determined that the applicant's medical condition of dissociative disorder had improved to the extent that he was found fit for duty in his rank and primary specialty and recommended the applicant be returned to duty.  The applicant concurred with the PEB's findings and recommendation.   

14.  On 12 December 1991, TAPC published Orders D249-12 announcing that the applicant was found fit for duty and he was accordingly removed from the TDRL effective 12 December 1991.  

15.  On 12 December 1991, by memorandum, the applicant was notified that he was afforded the opportunity to reenlist in the RA in his rank of sergeant and was provided with and election statement with respect to electing or declining to reenlist within 90 days of his removal from the TDRL.

16.  There is no indication in the applicant's records that he made an election within 90 days of his removal from the TDRL.  

17.  In his self-authored letter, dated 26 October 2004, the applicant states that after the notification that he was found fit for duty, he contacted his recruiter in Guam; however, he was already outside the 90-day window for reenlistment and was afforded the opportunity to reenlist, albeit at a lower rank.

18.  The applicant submitted several memoranda for record and conversation records handwritten by various individuals on miscellaneous dates in July 1992 and documenting attempts to reenlist the applicant in his former sergeant rank despite being beyond the 90-day window for reenlistment.

19.  There is no evidence in the applicant’s records that he reenlisted after his removal from the TDRL. 

20.  Army Regulation 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.  Army 
Regulation 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.

21.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) 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.  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.  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.  

22.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "SFK" Separation Code is the correct code for Soldiers separating under paragraph 4-24B(2) of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for temporary disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be corrected from RE-4 to a more favorable code so he may reenter the Army.

2.  The applicant’s temporary retirement was based on the fact that he underwent a PEB that found him physically unfit to perform duties in his grade and specialty and recommended placing him on the TDRL.  

3.  At the time of his separation, he received a separation code of SFK and an RE code of 4.  The SPD code of SFK was the appropriate code for the applicant based on the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of paragraph 4-24B(2) of Army Regulation
635-40.  Furthermore, such a discharge carries a reentry code of RE-4.  The SPD and RE codes entered on his DD form 214 are consistent with the reason and authority for discharge.

4.  The applicant’s RE code was assigned based on the fact that he was separated due to his physical disability.  Absent the unfitting medical conditions, there was no fundamental reason to convene a PEB.  The underlying reason for his discharge was his medical disability that resulted in his 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.

5.  The applicant subsequently underwent a TDRL PEB that found him fit for duty and removed her from the TDRL with entitlement to severance pay.  The applicant did not concur with this finding and demanded a formal hearing of his case.  Accordingly, a formal PEB convened and found the applicant's medical dissociative disorder had improved to the extent that he was found fit for duty in his rank and primary specialty and recommended he be returned to duty.  The applicant concurred with the PEB's findings and recommendation.

6.  Although the applicant was properly issued an RE code of 4 based upon his temporary disability retirement, there are regulatory provisions that will allow him to apply for a waiver to enlist.  The applicant should make his recruiting officials aware of the provisions in section XII of Army Regulation 601-210 as outlined in paragraph 21, above.  

7.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  At the time he was placed on the TDRL, 

the proper RE code associated with such discharge was RE-4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief.

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)                                         AR20080016094



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ABCMR Record of Proceedings (cont)                                         AR20080016094



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