IN THE CASE OF:	

		BOARD DATE:	18 June 2009  

		DOCKET NUMBER:  AR20090001299 


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 reentry (RE) code of RE-4 be changed to at least an RE-3 code.   

2.  The applicant states, in effect, he received an RE-4 code and he would like it changed to at least an RE-3 code.  He claims he received a medical disability discharge with severance pay and did not commit an illicit act.  He states that his service was honorable and he would like to join the Texas Army National Guard.

3.  The applicant provides no additional documents 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 record shows he enlisted in the Regular Army (RA) and entered active duty on 18 March 1992.  It also shows he held and served in military occupational specialty (MOS) 45G (Fire Control Repairer), and that private first class (PFC) was the highest rank he attained while serving on active duty.   

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows that upon completion of training, he was assigned to Fort Riley, Kansas, where he arrived for duty on 3 December 1992.  

4.  On 24 January 1994, the applicant was given a DA Form 3349 (Physical Profile) that indicated he was given a P-3 permanent profile for his lower extremities based on his diagnosed condition of left knee arthritis.  

5.  On 14 February 1994, the applicant's platoon sergeant prepared a statement indicating that the applicant's physical profile prevented him from doing his job as a fire control repairer.

6.  On 1 March 1994, a Medical Evaluation Board (MEB), after completing its review, referred the applicant's case to a Physical Evaluation Board (PEB) based on his "left knee patellar tendonitis brought on by overuse." 

7.  On 22 April 1994, a PEB convened at Fort Lewis, Washington, to review the applicant's case.  The PEB determined the applicant's "left knee patellar tendonitis brought on by overuse, manifested by pain with any strenuous exertion, rated slight" condition rendered the applicant physically unfit to perform his military duties and assigned a 10 percent disability rating.  The PEB further recommended the applicant be separated by reason of physical disability with severance pay.  

8.  On 3 May 1994, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  The PEB Proceedings were subsequently approved by the appropriate authority on behalf of the Secretary of the Army.

9.  On 15 July 1994, the applicant was honorably discharged, in the rank of PFC, under the provisions of paragraph 4-24, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of physical disability with severance pay.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows that he completed 

a total of 2 years, 3 months, and 28 days of active military service and that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) code of JFL and an RE code of RE-4.  

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (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-4 applies to persons who have a nonwaivable disqualification.  RE-3 applies to persons who have a waivable disqualification.  

11.  Army Regulation 635-5-1 (SPD Codes) provides the policy related to the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code JFL is the appropriate code to assign to Soldiers separated by reason of physical disability with severance pay.  The Department of the Army (DA) SPD/RE Code Cross Reference Table in effect at the time of the applicant's discharge stipulated that an RE-3 code would be assigned to members separated with a SPD code of JFL by reason of physical disability with severance pay.  The RE code for the SPD of JFL is still a 3 under the current table.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the code of RE-4 he was assigned upon his discharge should be changed to a code of RE-3 was carefully considered.

2.  At the time the applicant was discharged, and currently, members separated by reason of physical disability with severance pay were assigned a code of   RE-3, which applies to persons who are disqualified from reenlistment but the disqualification is waivable.  As a result, the applicant's record should be corrected to show he was assigned a code of RE-3.  

3.  The applicant is advised that this change does not automatically make him eligible to enlist in the RA or a Reserve Component (RC) of the Army.  In order to determine if he is qualified for enlistment with a waiver, 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 waivers for enlistment. 


BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting from item 27 of the applicant's DD Form 214 for the period ending 15 July 1994 the current "4" entry and replacing it with the entry "3"; and
   
   b.  providing the applicant a correction to his DD Form 214 that reflects this change.



      ___________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)                                         AR20090001299



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ABCMR Record of Proceedings (cont)                                         AR20090001299



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