IN THE CASE OF:	  

		BOARD DATE:	  10 February 2009

		DOCKET NUMBER:  AR20080017938 


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 record be corrected to show he received a reentry (RE) code of "1" instead of "4R" as is currently listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

2.  The applicant states, in effect, that the RE code of 4R assigned to him when he was placed on the Temporary Disability Retired List (TDRL) was an error.  He also indicates that his RE code was never updated when he was removed from the TDRL and wrongfully discharged for asthma; a condition that he states he does not have.  The applicant further indicates that he is attempting to enlist in the Texas Army National Guard (TXARNG) but is being prevented from doing so based on his RE code.

3.  The applicant provides the following documents in support of his request:  Application for the Review of Discharge from the Armed Forces of the United States (DD Form 293); United States Army Human Resources Command (HRC), letter, dated 7 December 2006; two Army Board for Corrections of Military Records (ABCMR) letters, dated 28 September 2006; Self-Authored Statements; Disabled American Veterans (DAV) letter, dated 16 September 2008; DD Form 214; Pulmonary Function Analysis; Respiratory Disease Clinic Consultation; Office of the Deputy Chief Staff, G-1 letter, dated 18 January 2008; United States Army Recruiting Command (USAREC) letter, dated 2 May 2006; United States Army Physical Disability Agency (USADPA) Orders D94-3, dated 14 May 2002; USAREC Electronic Mail (e-mail) Messages; and Headquarters, 101st Airborne Division and Fort Campbell Orders Number 210-0014, dated 28 July 2000.

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 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 military records show he enlisted in the Regular Army (RA) and entered active duty on 23 February 1999.  He was trained in, awarded, and served in military occupational specialty (MOS) 88M (Motor Transport Operator).

3.  On 10 September 2000, the applicant was honorably released from active duty under the provisions of Paragraph 4-24b(2), Army Regulation 635-40, and placed on the Temporary Disability Retired List (TDRL).  The DD Form 214 issued to him at that time confirms in Item 28 (Narrative Reason for Separation) that he was separated by reason of “disability, temporary.”  Item 26 (Separation Code) shows he was assigned a Separation Program Designator (SPD) code of SFK and Item 27 (Reentry Code) shows he was assigned an RE code of 4R.

4.  The applicant’s record contains a TDRL examination report that indicates a Medical Evaluation Board (MEB) referred the applicant for a TDRL examination following consideration of his medical condition on 24 May 2000.  The TDRL examination shows that the applicant’s chief complaint was “continued shortness of breath, fatigue and chest discomfort all worsened and recurrent with exertion.” The Laboratory and X-Ray Data confirmed that pulmonary function test showed “an FEV1 of 3.32, which is 78 percent (%) of predicted and FEV1/FEC of 53, which is 90% of predicted, which corresponded to mild obstructive disease and additional mild restricted disease.  There was no change and no improvement with bronchodilator treatment" and the applicant was diagnosed with sarcoidosis and asthma.  The TDRL examination further showed that it was unlikely that the applicant would be able to perform military duty in the future and it was recommended that his case be medically boarded.  

5.  On 7 April 2002, the applicant’s case was referred to a Physical Evaluation Board (PEB).  The applicant acknowledged that he had been informed of the TDRL report of examination findings and recommendation.  On 9 April 2002, he concurred with the findings and recommendation.
6.  On 11 February 2002, a PEB convened to consider the applicant’s case.  The PEB found the applicant was physically unfit for military service based on the sarcoidosis with asthma condition identified in the TDRL report of examination, and it recommended he be separated with severance pay with a combined physical disability rating of 0%.  On 18 April 2002, the applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

7.  On 14 May 2002, the USAPDA published Orders D94-3, which directed the applicant's removal from the TDRL and his discharge from the Army by reason of “permanent physical disability.”  These orders also show that he was entitled to severance pay with a 0% disability rating. 

8.  The applicant provides three self-authored statements in which he details his many efforts to have his RE code corrected in an attempt to reenter the Army.  He states that although he had a sinus infection which developed into pneumonia, he was incorrectly diagnosed as having asthma, a condition that he never had.  He also states that although he was diagnosed with sarcoidosis in 1996, he no longer has any signs of this condition.

9.  The applicant provides a Respiratory Disease Clinic Consultation, dated 23 May 2007.  This document notes his prior history of “sarcoidosis” diagnosed by mediastinoscopy and “asthma” diagnosed by a positive methacholine challenge test during military service.  The examining physician states that the applicant is healthy from a pulmonary standpoint and he indicates his belief that the applicant does not have asthma or sarcoidosis.

10.  The applicant provides an Office of the Deputy Chief of Staff, G1 letter, dated 18 January 2006 and a USAREC letter, dated 2 May 2006, which both informed him of his ineligibility for reenlistment based on his RE code of 4R.

11.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

12.  Paragraph 4-24b(2) of the PDES regulation provides for the separation of a member for physical disability with severance pay when the final decision is directed by the USAPDA.



13.  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 RA and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  RE-4 will be applied to members separated from their last period of service with a non-waivable disqualification.  This regulation also states that RE-4R applies to members who retired for length of service with 15 or more years of active federal service.  It further states that members with either RE code are ineligible for enlistment.

14.  Army Regulation 635-5-1 (Personnel Separations - SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of SFK is the appropriate code to assign to Soldiers separated under the provisions of paragraph 4-24b(2), Army Regulation 635-40, by reason of disability, temporary.  The SPD/RE Code Cross Reference Table in effect at the time established RE of 4 as the appropriate code to assign to members separated under these provisions.  This RE code assignment remains in effect under the current regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the reason for his discharge and his RE code of 4R code should be changed to allow him to reenter the Army because medical evidence shows that he no longer has sarcoidosis and that he never had asthma has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was properly processed through the Army's PDES in accordance with the applicable laws and regulations.  His condition was properly evaluated by a MEB, a TDRL examination was completed based on the recommendation of the MEB, and he was properly evaluated by a PEB.  Further, the applicant concurred with the findings and recommendation of both the MEB and the PEB.  The PEB findings and recommendation, to include the assigned disability rating, were based on a comprehensive medical evaluation of his disabling medical condition by competent medical authorities through the PDES process.  A subsequent change in his condition would not call into question the validity of the disability ratings that were assigned during the PDES process.


3.  The evidence of record further confirms the applicant was separated under the provisions of paragraph 2-24b(2), Army Regulation 635-40, by reason of disability, temporary.  By regulation, RE code of 4 is the proper code to assign to members separated under these provisions of the regulation.  Although the applicant's DD Form 214 shows an RE code of 4R instead of an RE code of 4, the effects of either code remains that the applicant is ineligible for enlistment.  In view of the circumstances, the level of the RE code assigned to the applicant at the time of his discharge was and still is appropriate based on the authority and reason for his separation.

4.  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. 

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)                                         AR20080017938



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ABCMR Record of Proceedings (cont)                                         AR20080017938



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