IN THE CASE OF:	  

	BOARD DATE:	  11 December 2008

	DOCKET NUMBER:  AR20080016362 


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, in effect, that his reenlistment code 4 be changed so that he may enlist in the Army. 

2.  The applicant states that he has overcome his injuries.  He further states that he has obtained two degrees and would like to use his new profession to assist our nation and to complete his time in the United States Army and be able to retire.  He loves our nation and the United States Army.

3.  The applicant provides no supporting documentation.

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.  On 30 March 1977, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He was subsequently assigned for duty as a personnel carrier driver at Fort Polk, Louisiana.  

3.  On 29 September 1979, the applicant was discharged for the purpose of immediate reenlistment in the Regular Army.  On 30 September 1979, he reenlisted.  He subsequently completed additional training and was awarded MOS 62J (General Construction Equipment Operator).  He was assigned for duty as a general construction machine operator at Schofield Barracks, Hawaii.   He returned to the Continental United States on or about 15 April 1983 for duty at Fort Drum, New York.    

4.  On 30 April 1985, the applicant was reassigned for duty at Fort Bragg, North Carolina.

5.  On 19 February 1986, the applicant was involved in a single vehicle motorcycle accident.  He sustained injuries to his right leg and left forearm.  His injuries were determined to be in the line of duty.

6.  On 24 May 1986, a Medical Evaluation Board (MEB) convened to evaluate the applicant’s medical condition.  It found that he suffered from a fracture of the right medial femoral condyle [rounded protuberance at the end of the thigh bone] and from a fracture of the left forearm.  He was referred to a Physical Evaluation Board (PEB).  The applicant indicated that he did not desire to remain on active duty.  The findings and recommendation were approved by the proper authority and the applicant agreed with the MEB’s findings and recommendations.

7.  On 5 August 1986, a PEB convened to consider the applicant’s physical condition.  He was diagnosed as having a status post open reduction, internal femoral condyle fracture with residual chondral defect of the right femoral condyle requiring aids to ambulation rated as nonunion without loose motion.  Weight bearing was preserved with aids.  This condition was rated as 60 percent disabling.  He was also diagnosed as having a piedmont fracture of the left non-dominant forearm with adequate reduction in pins and plaster rated as radius, nonunion in lower half without loss of bone substance.  This condition was rated at 20 percent disabling.  He was found unfit for duty with a combined disability rating of 70 percent.  He was recommended for placement on the temporary disability retired list (TDRL) and to be medically reevaluated during August 1987.


8.  Accordingly, on 3 October 1986, the applicant was retired due to a temporary physical disability.  He had attained the rank of sergeant (SGT)/pay grade E-5, and had completed a total of 7 years, 6 months, and 5 days of creditable active duty service.  He was given a Separation Program Designator (SPD) Code of SFK and a reenlistment code of 4.  His character of service was honorable.  

9.  On 22 September 1987, the applicant underwent another PEB.  It found that the applicant’s fractures had healed but that his knee still rendered him unfit for duty.  His injury was rated at 20 percent disabling.   It further determined that it was unlikely that he would become fit for military duty in the foreseeable future and recommended that he be separated from the military service with severance pay, if otherwise qualified.  On 5 October 1987, the applicant concurred with the PEB's findings and recommendation and waived a formal hearing of his case.

10.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of SFK was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-40, paragraph 4-24 due to temporary physical disability.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper RE code to assign to Soldiers separated for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The reenlistment code 4, establishing his ineligibility for enlistment/
reenlistment, was correctly entered on his separation document in accordance with governing regulations.



2.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the reenlistment code 4.  While the applicant’s desire to continue in the service to his country is commendable, there is no provision for authorizing the change of a reenlistment code for this purpose.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.  

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.



	___________X____________
      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)                                         AR20070016793



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016362



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1