IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090002024 


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 correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

	a.  correction of item 24 (Character of Service) from "uncharacterized" to "honorable";

	b.  correction of item 27 (Reentry Code) from RE-3 to RE-1; and 

	c.  removal of the entry "disability, severance pay" from item 28 (Narrative Reason for Separation).

2.  The applicant states that her characterization of service is improper and should have been nothing less than honorable.  She obeyed all the orders given to her by her superiors and went above and beyond what was asked of her.  She adds that she should not be penalized because of a minor stress fracture that occurred while she was giving 110 percent to her squadron.  She further adds that the word uncharacterized can take on several different meanings but it does not describe the determination, endurance, dedication, and performance she went through in the course of becoming a Soldier.  She adds that she thinks her RE code should be an RE-1, that she never received any disability or severance pay from the military, and that the statement shown in item 28 of her DD Form 214 is misleading.

3.  The applicant provides a copy of her DD Form 214, dated 8 April 2005, in support of her request.
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 she enlisted in the Regular Army for a period of 3 years on 28 December 2004 and was subsequently assigned to Company A, 82nd Chemical Battalion, Fort Leonard Wood, MO, for completion of basic combat training.

3.  Shortly after her arrival at Fort Leonard Wood, the applicant complained of right foot pain which continued to progress and was subsequently diagnosed with bilateral navicular stress fractures on 26 January 2005.  She was treated with medications, crutches, and a Cam walker, but none relieved her pain.  She was placed on a 30-day convalescent leave on 1 February 2005; however, upon her return her pain persisted.  The attending physician recommended her referral to the Physical Disability Evaluation System (PDES).

4.  On 7 March 2005, a medical evaluation board (MEBD) convened at General Leonard Wood Army Community Hospital, Fort Leonard Wood, MO, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant failed to meet retention standards of paragraph Army Regulation 40-501 (Standards of Medical Fitness) by reason of right foot stress fracture in the navicular bone with left foot stress fracture of the navicular bone as well as the calcaneous.  The MEBD recommended that she be referred to a physical evaluation board (PEB).  On 14 March 2005, the applicant agreed with the MEBD’s findings and recommendation and indicated that she did not desire to continue on active duty.

5.  On 21 March 2005, an informal PEB convened at Fort Lewis, WA, and found the applicant's medical condition prevented her from performing the duties required of her rank and specialty and determined that she was physically unfit due to bilateral navicular stress fractures of the navicular and left calcaneous.  She was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a zero percent disability rating for codes 5099 and 5003.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  On 24 March 2005, the applicant concurred with the PEB’s finding and recommendation and waived her right to a formal hearing of her case.

6.  On 7 April 2005, Headquarters, U.S. Army Maneuver Support Center and Fort Leonard Wood, Fort Leonard Wood, MO, published Orders 97-353 directing the applicant’s discharge in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability and on 8 April 2005 she was accordingly discharged.

7.  The DD Form 214 she was issued shows she completed 3 months and 11 days of creditable active military service.  Item 24 of this form shows the entry "uncharacterized"; item 26 (Separation Authority) shows the entry "AR 635-40 paragraph 4-24B(3)"; item 26 (Separation Code) shows the entry "JFL"; item 27 shows the entry "RE-3" and item 28 shows "Disability, Severance Pay." 

8.  Army Regulation 635-40 establishes the Army 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.  It provides for MEBD which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

9.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

11.  Title 10, U.S. Code, section 1212(b) provides that upon separation from the armed force under section 1203 or 1206 of this title, a member is entitled to disability severance pay computed by multiplying his/her years of service, but not more than 12, computed under section 1208 of this title, by the highest of the following amounts: Twice the amount of monthly basic pay to which he/she would be entitled if serving on active duty on the date when he/she is separated and in the grade and rank in which he/she was serving on the date when his/her name was placed on the temporary disability retired list, or if his/her name was not carried on that list, on the date when he/she is separated.  For the purposes of this section, a part of a year of active service that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It states in pertinent part that an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization of under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

13.  Army Regulation 635-200 states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned reenlistment eligibility (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 Regular Army (RA) and the U.S. Army Reserve.  Table 3-1 included a list of the RA RE codes.  An 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.  An 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. 

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the 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 a statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  The "JFL" SPD code is the correct code for Soldiers separating under paragraph 4-24b(3) of Army Regulation 635-200 by reason of disability-severance pay.

15.  The SPD/RE Code Cross-Reference Table, dated 31 March 2003, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross-reference table shows the SPD code and a corresponding RE code.  The SPD code of "JFL" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her character of service should be changed from "uncharacterized" to "honorable," her RE code should be changed from RE-3 to RE-1, and her disability-severance pay reason for separation should be removed.

2.  With respect to the narrative reason for separation, the evidence of record shows that the applicant was diagnosed with a medical condition that warranted her entry into the PDES.  She subsequently underwent an MEBD which recommended she be given a PEB.  She agreed with this recommendation.  The PEB found her medical condition prevented her from performing the duties required of her rank and specialty and determined that she was physically unfit for further military service.  The PEB recommended her separation with entitlement to severance pay, if otherwise qualified.  The applicant concurred. 

3.  With respect to her zero-percent disability, the evidence of record shows that she completed less than 6 months of active service; therefore she would not have been entitled to payment of any severance pay.  Nevertheless, the fact that she was rated at zero-percent disabled is not relevant to the narrative reason of her separation.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.


4.  With respect to her characterization of service, during the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.

5.  The applicant’s determination, endurance, dedication, and performance she went through in the course of becoming a Soldier are not in question.  However, the entry-level separation is given regardless of the reason for separation.  This uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.  The applicant’s DD Form 214 correctly shows her character of service as uncharacterized.

6.  With respect to her RE code, the evidence of record confirms that the applicant’s RE code was assigned based on the fact that she was separated under the provisions of paragraph 4-24b(3) of Army Regulation 635-200 due to her physical disability.  Absent the medical condition, there was no fundamental reason to process the applicant into the PDES.  The underlying reason for her discharge was her disability (with entitlement to severance pay if otherwise qualified).  The only valid narrative reason for separation permitted under that paragraph is "disability-severance pay" and the appropriate RE code associated with this discharge is RE-3.

7.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested 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.



      _______ _   __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)                                         AR20090002024



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ABCMR Record of Proceedings (cont)                                         AR20090002024



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