IN THE CASE OF:	  

		BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090002671 


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 4 be changed to a more favorable code so that he may be eligible to reenter the Army. 

2.  The applicant states, in effect, that he was medically retired due to asthma.  After 2 years, his retirement was taken away but he was told that he was still unfit for military duty.  He feels great, he has not had an asthma attack and he has not smoked for the past 3 years.  He needs his RE code changed to a 3 or lower to reenter the Army.

3.  The applicant provides, in support of his application, copies of a history and physical consultation, and a plethysmography [lung function] report from the Georgetown Sleep Center, dated 19 February 2009. 

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 17 June 1999, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 21B (Combat Engineer).

3.  On 14 November 2003, the applicant was separated because of a physical disability incurred while entitled to basic pay and under conditions that permitted placement on the Temporary Disability Retired List (TDRL).  The effective date of his retirement was 14 November 2003.  He was placed on the retired list as a private first class on 15 November 2003.

4.  The applicant's medical records, to include the Physical Evaluation Board decision are not available for review.

5.  Items 23 thru 28 of the applicant's DD Form 214 show that he was honorably retired due to temporary disability, under the provisions of Army Regulation 
635-40, paragraph 4-24b(2) with a Separation code of SFK and an RE code 
of 4.

6.  There is no available evidence showing the applicant was removed from the TDRL. 

7.  Army Regulation 635-40 provides guidance and policies for physical evaluation for retention, retirement and separation.  Paragraph 4-24B of this regulation provides for placement on the Permanent or TDRL.

8.  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.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

9.  Army Regulation 601-210 also contains special processing procedures for Soldiers removed from the TDRL.  It states, in pertinent part, that medical 


waivers for enlistment may be considered for former enlisted members if their physical condition has improved so that they meet retention criteria for active duty and their names consequently have been removed from the TDRL.  

10.   Army Regulation 635-5-1 (Separation Program Designator (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. 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 2-24B (2), for temporary disability. Additionally the SPD/RE Code Cross Reference Table establishes RE code 4 as the proper RE code to assign to Soldiers for this reason.

11.  The physical examination report provided by the applicant indicates that at the time of the examination he clinically did not have asthma.  The report indicates that he would have to undergo a methacholine challenge provocation test to determine if he has a reactive airway disease.  The examining facility did not have the ability to perform this test.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his RE code of 4 be changed so that he may reenter the Army. 

2.  In the absence of evidence to the contrary, it is presumed that the applicant’s physical evaluation proceedings were conducted in accordance with law and regulations applicable at the time.  

3.  The medical evidence the applicant provided is not sufficient to support his contention that he no longer has asthma and is fit for duty. 

4.  The RE code of 4 establishing the applicant’s ineligibility for enlistment/reenlistment was correctly entered on his separation document in accordance with governing regulations.

5.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE code of 4.  While the applicant’s desire to continue in service to his country is commendable, there are no provisions authorizing the change of an RE code for this purpose.  However, in accordance with Army Regulation 601-210, he still may be eligible for a medical waiver to enlist.  



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)                                         AR20090002671



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ABCMR Record of Proceedings (cont)                                         AR20090002671



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