IN THE CASE OF:	  

		BOARD DATE:	        14 June 2009

		DOCKET NUMBER:  AR20090003729 


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 an upgrade of her reentry eligibility (RE) code from RE-4 to a more favorable code so she may reenter the Army.

2.  The applicant states that she was retired for disability due to seizures resulting from anthrax shots when she was preparing to go to Iraq and that she had never had seizures before.  She adds that her last seizure was 2005 and she has not had one since.  She would like to finish her military service as a retiree as she has 14 years of active service and would like to come back into service in the U.S. Army Reserve (USAR).

3.  The applicant provides a copy of her DA Form 2-1 (Personnel Qualification Record) and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 March 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.  With prior enlisted service in the USAR and the Regular Army, the applicant’s records show she enlisted in the USAR for a period of 6 years on 1 September 2000.  She was trained in and held military occupational specialty 92A (Automated Logistics Management Specialist).

3.  The applicant’s records show that while at Aberdeen Proving Ground, MD, 10 days after being given the anthrax shot on 19 March 2003, the applicant was seen at a civilian hospital for probable seizures or recurrence of seizures.  Her illness was later determined to be in the line of duty.

4.  On 24 June 2004, the applicant was considered by a medical evaluation board (MEBD) which determined that she was diagnosed with a seizure disorder and subluxation of left shoulder and recommended she be referred to a physical evaluation board (PEB).  The applicant agreed with the MEBD's findings and recommendations and indicated that she did desire to continue on active duty.

5.  On 12 January 2005, an informal PEB was convened at Walter Reed Army Medical Center and found the applicant physically unfit due to seizure disorder.  The applicant's other medical condition was also considered by the PEB; however, it was found to be neither unfitting nor ratable.  The PEB rated the applicant at 40 percent and recommended she be placed on the temporary disability retired list (TDRL) with reexamination during June 2006.  The applicant concurred with the PEB's findings and recommendation and waived her right to a formal hearing of her case.

7.  On 28 March 2005, the applicant was accordingly retired from active duty by reason of temporary physical disability.  The DD Form 214 she was issued shows she was honorably retired on 28 March 2005 in accordance with paragraph 4-24b(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of temporary physical disability.  This form also shows she was credited with a total of 6 years, 9 months, and 1 day of active service.  Item 26 (Separation Code) shows the entry "SFK" and item 27 (Reentry Code) shows the entry "4."

8.  On 9 April 2007, an informal TDRL PEB convened at Walter Reed Army Medical Center and determined that the applicant's medical condition of seizure disorder had improved to the extent that it was ratable at less than 30 percent and recommended a combined rating of 10 percent and separation with severance pay.  The TDRL PEB was approved and she was accordingly removed from the TDRL.

9.  Army Regulation 635-200 (Personnel Separations) states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the USAR.  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.  An RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification.

10.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (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 statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense and the military services to assist in the collection and analysis of separation data.  The SFK SPD is the correct code for Soldiers separating under paragraph 4-24b(2) of Army Regulation 635-40 for temporary disability.

11.  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 the corresponding RE code.  The SPD code of SFK has a corresponding RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that her RE code be corrected from RE-4 to a more favorable code so she may reenter the Army.

2.  The applicant’s temporary retirement was based on the fact that she underwent a PEB that found her physically unfit to perform the duties in her grade and specialty and recommended placing her on the TDRL.  At the time of her separation, she received a separation code of SFK and an RE code of 4.  The SPD code of SFK was the appropriate code for the applicant based on the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of paragraph 4-24b(2) of Army Regulation 635-40.  Furthermore, such a discharge carries a reentry code of RE-4.  The SPD and RE codes entered on her DD Form 214 are consistent with the reason and authority for discharge.

3.  The applicant’s RE code was assigned based on the fact that she was separated due to her physical disability.  Absent the unfitting medical conditions, there was no fundamental reason to convene a PEB.  The underlying reason for her discharge was her medical disability that resulted in her temporary retirement.  The only valid narrative reason for separation permitted under that paragraph is "retirement" and the appropriate RE code associated with this discharge is RE-4.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  At the time she was placed on the TDRL, the proper RE code associated with such discharge was RE-4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to 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)                                         AR20090003729



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ABCMR Record of Proceedings (cont)                                         AR20090003729



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