BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090009395 


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 that his Reentry Eligibility (RE) Code be changed from a RE Code of 4 to a 1 due to his honorable discharge.

2.  The applicant states that he received a medical discharge and was placed on the Temporary Disability Retirement List (TDRL) in September 2005.  He was later deemed fit for duty.  He received his orders and Honorable Discharge Certificate in the mail but he never received a new DD Form 214 (Certificate of Release or Discharge from Active Duty).

3.  In support of his application, the applicant provides copies of his 2005 DD Form 214, his orders removing him from the TDRL, and his Honorable Discharge Certificate.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he enlisted in the Regular Army in pay grade E-5 on 31 January 2002, for 3 years, with prior enlisted service.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 25Q, Multichannel Transmission Systems Operator.  He was promoted to pay grade E-6 on 1 October 2002.

2.  On 23 June 2005, a Physical Evaluation Board (PEB) convened and considered the applicant's disability of asthma.  The PEB found that his medical and physical impairment prevented reasonable performance of duties required by his grade and MOS.  The PEB placed the applicant on the TDRL because his condition was not sufficiently stable for final adjudication.  On 28 June 2005, he concurred with the findings and recommendations of the PEB.

3.  The applicant was honorably retired on 25 August 2005, under the provisions of Army Regulation 635-40, paragraph 4-24(b)2, for temporary disability.  He was credited with 3 years, 6 months, and 25 days of net active service.

4.  The applicant was issued a DD Form 214 that shows in Item 26 (Separation Code) the entry “SFK” and Item 27 (RE Code) shows the entry “4.”

5.  On 14 March 2007, a second PEB convened and considered the applicant's disability of asthma.  The PEB found that he remained unfit to reasonably perform his duties and his condition was considered sufficiently stable for final adjudication.  The PEB found the applicant physically unfit and recommended a combined rating of 10 percent and separation with severance pay.

6.  On 26 March 2007, the applicant did not concur with the findings and recommendations of the PEB and indicated that he was submitting a written appeal.  There is no evidence that a written appeal was submitted.

7.  The applicant submitted a copy of Orders D096-7, dated 5 April 2007, issued by the U.S. Army Physical Disability Agency removing him from the TDRL and discharging him from the service effective 5 April 2007 due to a permanent physical disability rated at 10 percent disabling with severance pay.  He was also issued an Honorable Discharge Certificate, dated 5 April 2007.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth the basic authority for the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  Paragraph 4-24b(2) provides that Soldiers placed on the TDRL will be issued retirement orders or other disposition instructions.  Paragraph 7-11(2) specifies that Soldier will be removed from the TDRL and separated with severance pay when the disability has stabilized at less than 30 percent.  A Soldier who would be separated under this authority may request a waiver to reenlist.   

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 and the Reserve.  The regulation provides 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.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE Codes.  Chapter 3-10, also provides that RE Codes may be changed only if they are determined to be administratively incorrect.  

10.  An RE Code of 4 applies to persons separated from the last period of service with a non-waivable disqualification.  Members separated with an RE Code 4 are ineligible for enlistment.  An RE Code of 1 means the Soldier is fully qualified for reenlistment.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs to be used for those stated reasons.  The regulation showed that the SPD Code of “SFK” as shown on the applicant’s DD Form 214 is appropriate for retirement when the narrative reason for discharge is “Disability, Temporary” and the authority for discharge is Army Regulation 635-40, paragraph 4-24b(2). 

12.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, provided instructions for determining the RE Code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed the SPD Codes with their corresponding RE Code.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD Code of “SFK” had a corresponding RE Code of “4.”

13.  Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time, specified in Paragraph 2-1b(3) specified that a DD Form 214 would not be prepared for Soldiers removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change of his RE Code of 4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error or inequity to justify the relief he now seeks.  

2.  The evidence shows the applicant was retired from active duty for temporary disability, on 25 August 2005, issued a DD Form 214, and placed on the TDRL.  He was assigned an RE Code of “4.”  He contends that his RE Code should be changed from an RE Code of 4 to a 1 due to his honorable discharge.  However, his assigned RE Code is consistent with the reason for separation.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that his assigned RE Code is in error or unjust.  Therefore, he has established no basis for changing his existing RE Code.
3.  The evidence also shows the applicant was removed from the TDRL effective 5 April 2007 with a 10 percent disability rating and entitlement to severance pay and issued an Honorable Discharge Certificate.  In accordance with pertinent regulations, members removed from the TDRL are not issued a DD Form 214.  

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090009395



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ABCMR Record of Proceedings (cont)                                         AR20090009395



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