BOARD DATE:	  6 August 2009

		DOCKET NUMBER:  AR20090003745 


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 the Reentry (RE) Code of 4 on her 2005 DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to RE-1 or RE-2. 

2.  The applicant states she does not understand why she got an RE-4.  She notes she received an honorable discharge, was never in any type of legal trouble, and was never overweight or failed a physical training test.  She believes that someone who worked in the administrative office just went in the computer and “flagged” her.  She states there was never a reason for her to be “flagged” and does not know why she “ended up a 4” but “it must be an error.”

3.  The applicant provides a copy of her 2005 DD Form 214 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.  Records available to the Board indicate the applicant entered active duty as a Regular Army enlisted Soldier on 21 May 1997.  The applicant was trained as a unit supply sergeant and by July 1999 had been promoted to pay grade E-4.  In June 2000 she executed a reenlistment contract.  

3.  Although the facts and circumstances pertaining to the applicant’s retirement due to temporary disability are not contained in the available records, her military records do contain a properly constituted DD Form 214.  This DD Form 214 shows that the applicant was retired on 5 May 2005 due to temporary disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  Item 28 (Narrative Reason for Separation) of the applicant’s DD Form 214 has an entry of “Disability, Temporary.”  Her DD Form 214 also shows that she was assigned a Separation Program Designator (SPD) code of “SFK” and an RE code of “4.”

4.  The applicant’s file does contain a June 2008 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) indicating the applicant suffered from Bipolar II Disorder which rendered the applicant unfit to reasonably perform the duties required by her previous grade and military specialty and were then (by June 2008) considered sufficiently stable for final adjudication.  The informal PEB recommended the applicant’s name be removed from the TDRL and that she be permanently retired by reason of disability.  

5.  A 16 July 2008 memorandum, contained in the applicant’s file, indicated the results of the informal PEB were forwarded to the applicant but the applicant failed to make an election within the prescribed time limits.  The findings and recommendation of the informal PEB were approved on 24 July 2008 and on 
5 August 2008 the applicant’s name was removed from the TDRL and on the following day she was permanently retired with a disability rating of 30%. 

6.  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 and the United States Army Reserve.  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 Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.
7.  Army Regulation 635-5-1 (Separation Program Designator 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5-1 (Separation Documents) establishes RE codes to be assigned for each SPD.  

8.  An SPD code of "SFK" applies to persons who are retired due to temporary disability under the provisions of Army Regulation 635-40.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals retired due to temporary disability.  An RE code of 4 indicates that the applicant was separated from his last period of service with a disqualification which cannot be waived and is ineligible for reenlistment.

9.  Army Regulation 601-210 also provides, in pertinent part, that RE codes may only be changed if they are determined to be administratively incorrect. 

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The assignment of an RE-4 code is not an indication that the applicant was somehow at fault for the basis of her discharge or that her discharge reflected any sort of misconduct on the part of the applicant.  Rather, it merely indicates that at the time the applicant was discharged she was precluded from reenlistment because her medical condition rendered her ineligible for reenlistment.

2.  The applicant's RE code is based on her reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  Her narrative reason for discharge was based on her retirement due to temporary disability, and the Board could find no basis upon which to change this reason.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

3.  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.

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)                                         AR20090003745





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ABCMR Record of Proceedings (cont)                                         AR20090003745



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