IN THE CASE OF:	  

		BOARD DATE:	  29 January 2009

		DOCKET NUMBER:  AR20080018254 


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 the reentry (RE) code and narrative reason for separation listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.  

2.  The applicant states, in effect, that he was medically discharged because he had asthma and was assigned an RE-3 code.  He claims that since his discharge he has had a pulmonary function test which found he no longer suffers from asthma.  

3.  The applicant provides VistA [Veterans Health Information Systems and Technology Architecture] Electronic Medical Documents and his DD Form 214 in support of his application.

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 military records show he enlisted in the Regular Army (RA) and entered active duty on 18 July 2002.  He was trained in, awarded, and served in military occupational specialty (MOS) 92A (Automated Logistical Specialist).

3.  The applicant’s record contains a Medical Evaluation Board (MEB) narrative summary (NARSUM), which was prepared during the MEB's consideration of his case on 24 January 2005.  The NARSUM indicates the applicant was diagnosed with “moderate persistent asthma,” which existed prior to military service (EPTS). The MEB recommended that the applicant's case be referred to a Physical Evaluation Board (PEB) for further disposition.  The applicant was informed and agreed with the findings and recommendation of the MEB on 28 January 2005.

4.  On 11 February 2005, a PEB convened to consider the applicant’s case.  The PEB found the applicant was physically unfit for military service based on the asthma condition identified in the MEB NARSUM, and it recommended he be separated with severance pay with a combined physical disability rating of 
10 percent.  On 14 February 2005, the applicant concurred with the findings and recommendation of the PEB, and waived a formal hearing of his case.

5.  On 26 March 2005, the applicant was honorably discharged after completing a total of 2 years, 8 months, and 9 days of active military service.  Item 28 (Narrative Reason for Separation) of the DD Form 214 he was issued at the time confirms he was separated under the provisions of paragraph 4-24b(3), Army Regulation 635-40, by reason of “disability with severance pay."  Item 26 (Separation Code) shows he was assigned a Separation Program Designator (SPD) code of JFL and Item 27 (Reentry Code) shows he was assigned an RE-3 code.

6.  The applicant provides documents titled “Consult Request and Progress Note” prepared on 15 August 2007.  These documents shows that full pulmonary function tests were performed on the applicant, all with good patient effort.

7.  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.  
Paragraph 4-24b(3) of this regulation provides for the separation of a member for physical disability with severance pay when the final decision is directed by the United States Army Physical Disability Agency (USAPDA).
8.  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.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-3 applies to members who are considered not fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.

9.  Army Regulation 635-5-1 (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 JFL is the appropriate code to assign to Soldiers separated under the provisions of paragraph 4-24b(3), Army Regulation 635-40, by reason of disability with severance pay.  The SPD/RE Code Cross Reference Table in effect at the time established RE-3 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 separation and his RE-3 code should be changed to allow him to reenter the Army because medical evidence shows that he no longer has 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 case was properly considered by an MEB and a PEB and he concurred with the findings and recommendation of both boards.  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(3), Army Regulation 635-40, by reason of disability with severance pay.  By regulation, RE-3 is the proper code to assign to members separated under these provisions of the regulation.  In view of the circumstances, the RE-3 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. 

5.  The applicant is advised that although no change to his RE code is recommended, this does not mean he is being denied the opportunity to reenter the Army.  While RE-3 does apply to persons who are not considered fully qualified for reentry or continuous service, there are provisions that provide for a waiver of the disqualification.  If he desires to again enlist in the Army, he should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process RE code waivers.  

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)                                         AR20080018254



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ABCMR Record of Proceedings (cont)                                         AR20080018254



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