BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009411 


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 be changed from RE-3 to RE-1.  

2.  The applicant states, in effect, his condition is not permanent.  

3.  The applicant provides a doctor's letter 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 he enlisted in the Regular Army and entered active duty on 31 October 1989.

3.  On 20 September 1990, while still in training, a Medical Evaluation Board (MEB) diagnosed him with bilateral chondromalacia patella, moderate to severe, and referred him for evaluation by a Physical Evaluation Board (PEB).  

4.  On 19 October 1990, a PEB convened at Walter Reed Army Medical Center (WRAMC), Washington D.C., to consider the applicant's case.  The PEB found the applicant physically unfit and recommended a combined disability rating of 
10 percent (%) and that he be separated with severance pay.  

5.  On 29 October 1990, the applicant concurred with the findings and recommendations of the PEB and it was approved on behalf of the Secretary of the Army.  On 19 November 1990, the applicant was discharged accordingly. 

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge on 19 November 1990 confirms he was separated, in the rank of private first class, under the provisions of paragraph 4-24e(3), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of "physical disability with severance pay." It further shows he was assigned a separation program designator (SPD) code of JFL and an RE code of 3 based on the authority and reason for his separation.

7.  The applicant provides a doctor's statement, dated 16 December 2008, in which the doctor indicates the applicant's knees were stable and he could return to active duty service without restrictions.   

8.  Army Regulation 635-40 contains guidance on the Army's Physical Disability Evaluation System (PDES).  Chapter 4, Section VI contains guidance on disposition subsequent to adjudication and paragraph 4-24e(3) in effect at the time provided for the discharge of members by reason of physical disability with severance pay.  

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 U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.

10.  Chapter 3 of Army Regulation 601-280 also includes a list of Armed Forces RE codes, including RA RE codes.  RE-3 applies to persons who have a waivable disqualification.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are required to process waiver requests. 

11.  Army Regulation 635-5-1 (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 version of the regulation in effect at the time stated, in pertinent part, that the SPD code JFL was the appropriate code to assign to Soldiers separated under the provisions of paragraph 4-24(e)3, Army Regulation 635-40, by reason of disability with severance pay.  The SPD/RE Code Cross Reference Table in effect at the tiem provided for assigning an RE-3 code to members separated under these provisions with an SPD code of JFL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be upgraded to allow him to reenlist because his condition was not permanent and the supporting statement from his doctor were carefully considered.  However, there is insufficient evidence to support his claim.  

2.  The evidence of record confirms the applicant was properly processed through the PDES, that he was ultimately discharged by reason of physical disability with severance pay based on the findings and recommendations of a PEB, and that he concurred with the PEB findings and recommendation.  By regulation, members separated by reason of physical disability with severance pay are assigned an RE-3 code.  As a result, the RE-3 code assigned the applicant was and remains valid based on the authority and reason for his discharge.  

3.  Although the applicant was properly issued an RE-3 code, there are regulatory provisions that allow him to apply for a waiver to enlist/reenlist.  Therefore, if he would like to reenter military service, he should consult with recruiting officials, who are responsible for submitting RE code waivers.   

4.  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)                                         AR20090009411



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ABCMR Record of Proceedings (cont)                                         AR20090009411



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