IN THE CASE OF:	

		BOARD DATE:	18 June 2009  

		DOCKET NUMBER:  AR20090004172 


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, an upgrade of his reentry eligibility (RE) code.  

2.  The applicant states, in effect, he was medically retired and taken off of retirement status because his condition improved.  He states he has been cleared to reenlist by his Department of Veterans Affairs (VA) doctor.

3.  The applicant provides VA medical records 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 military record shows that after serving on active duty from 
19 August 1996 through 18 August 2000, the applicant enlisted in the Army National Guard (ARNG) on 19 August 2000.  

3.  On 3 April 2004, while serving in the ARNG, the applicant was ordered to active duty for 150 days for the purpose of an active duty medical extension.  

4.  The applicant's Official Military Personnel File (OMPF) is void of a packet related to his separation processing through the Army's Physical Disability Evaluation System (PDES) or of Physical Evaluation Board (PEB) Proceedings confirming the specific disqualifying medical condition that led to his separation.  The OMPF does contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for the applicant's disability separation.

5.  The DD Form 214 issued to the applicant upon his release from active duty (REFRAD) for retirement, on 19 August 2004, shows he was separated under the provisions of Paragraph 4-24b(2), Army Regulation 635-40, by reason of disability, temporary.  It further shows he completed a total of 5 years, 9 months, and 11 days of active military service and that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of SFK and an RE code of 4R.  

6.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) on file shows the applicant was also discharged from the ARNG and transferred to the United States Army Reserve (USAR) Control Group (Retired) on 30 June 2004.  The NGB Form 22 shows he completed a total of 8 years,      1 month and 4 days of service for retired pay.  

7.  The applicant provides VA medical treatment records that include a progress note that contains a diagnosis of "Ankylosing Sponylitis" and contains a comment from the examining physician that indicates the applicant is doing quite well and he saw no reason why the applicant could not reenlist.  

8.  There is no evidence of record and the applicant did not provide any to show whether he has been removed from the TDRL.

9.  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 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 4R is used to denote retirement with a nonwaivable disqualification.  RE-3 applies to persons who have a waivable disqualification.  

10.  Army Regulation 635-5-1 (SPD Codes) provides the current 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 SFK is the appropriate code to assign to Soldiers separated by reason of disability temporary.  The SPD/RE Code Cross Reference Table stipulates that a code of RE-4 will be assigned to members separated under these provisions with an SPD code of SFK.  

11.  Army Regulation 601-210, section XII, governs special processing for Soldiers removed from the TDRL.  It states, in pertinent part, that as the result of a periodic physical examination, a former Army enlisted member may be determined physically fit for return to duty.  If so, the member may be enlisted in the RA or USAR when his or her name has been properly removed from the TDRL and if requirements of this section are met.  Enlistments within 90 days of removal from the TDRL will be made without regard to basic enlistment qualifications for prior service (PS) persons described in chapter 3 of this regulation.  Such persons will be enlisted in the permanent pay grade held on the day before the date their names were placed on the TDRL.  Former enlisted members who do not enlist in their respective component within 90 days of removal from the TDRL must meet all PS standards and qualifications at time of enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be upgraded to allow him to reenlist based on the evaluation of his VA doctor was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record is void of and the applicant has failed to provide a separation packet containing the specific facts and circumstances surrounding his separation processing through the PDES and/or PEB Proceedings outlining the specific unfitting medical condition(s) that led to his separation by reason of disability, temporary and his placement on the Temporary Disability Retired List (TDRL).  However, the record contains a properly constituted DD Form 214 and NGB Form 22, which identify the reason and authority for the applicant's separation.  Absent evidence to the contrary, government regularity is presumed in the separation process based on these separation documents.  

3.  Although the VA medical treatment records provided by the applicant contain a statement from a VA physician that indicates he saw no problem with the applicant reenlisting, the record confirms the applicant was properly assigned an SPD code of SFK and an RE-4 code based on the authority and reason for his discharge and absent any evidence of error or injustice in the separation process, which includes the SPD and RE code assignments, the assigned RE code of 4R was and remains valid.  Absent any evidence of error or injustice in the PDES process, there is an insufficient evidentiary basis to support granting the requested relief. 

4.  In addition, there is no evidence of record and the applicant provided none to show if he has been removed from the TDRL.

5.  Although the applicant was properly issued an RE code of 4 based upon his temporary disability retirement, there are regulatory provisions that will allow him to apply for a waiver to enlist if he has been removed from the TDRL as a result of being found fit.  If that is the case, the applicant should make his recruiting officials aware of the provisions in section XII of Army Regulation 601-210 as outlined in paragraph 21, above.  

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)                                         AR20090004172



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ABCMR Record of Proceedings (cont)                                         AR20090004172



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