IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090014712 


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 an RE code of 4R to an RE code of 1.

2.  The applicant states, in effect, that he was medically retired from the Regular Army (RA) due to a permanent physical disability on 30 December 2008 and he has been dissatisfied with life in the civilian world.  He also states that during his time as a Soldier he exceeded every expectation placed upon him, he led from the front, and his dedication was unparalleled.  The applicant states that he has been cleared by a Department of Veterans Affairs (VA) physician to reenter the military. The applicant states that he is placing himself at the mercy of the Army Board for Correction of Military Records (ABCMR).  He requests that he be granted an opportunity to serve his country once again with the professionalism, leadership, and respect of an American Soldier.

3.  The applicant provides a self-authored statement as documentary evidence in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the ABCMR review the new medical evidence in the applicant's case and grant him the requested relief.  Counsel also requests to be afforded an opportunity to respond to any advisory opinions provided to the ABCMR from outside agencies.

2.  Counsel states the applicant was placed on the Permanent Disability Retirement List (PDRL); however, the applicant has since undergone sufficient physical therapy and rehabilitation such that he has fully recovered from his injuries and is fit to return to duty.  Counsel states that the applicant has expressed his willingness to forego his permanent disability retirement status with accompanying benefits should his request for relief be granted. 

3.  Counsel provides copies of a DD Form 2807-2 (Medical Prescreen of Medical History Report), dated 22 July 2009; a DD Form 2807-1 (Report of Medical History), dated 22 July 2009; and a Recruiter Eligibility Data Display (REDD) Report as documentary evidence in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record contains a DD Form 2808 (Report of Medical Examination), dated 28 March 2002, which was rendered for the purpose of enlisting in the RA.  Item 73 (Notes) of this form shows the applicant was diagnosed with chronic hepatitis C.  Item 74a of this form shows the examining physician indicated the applicant was not physically qualified for service.  In
Item 74b, the physician indicated the applicant had a permanent level 3 (P3) physical limitation code in his physical profile (denoting that he was unable to perform full effort except for brief or moderate periods).  The examining physician forwarded this form to the waiver authority for further consideration and an entrance waiver was granted.

2.  The applicant's record shows he enlisted in the RA and entered active duty on 25 January 2004.  Upon completion of advanced individual training, he was awarded military occupational specialty 25F (Network Switching Systems Operator/Maintainer).  The highest rank the applicant attained while serving on active duty was corporal/pay grade E-4.

3.  The applicant's record contains a DA Form 199 (Physical Evaluation Board Proceedings (PEB)), dated 9 October 2008, which shows a PEB was convened in Washington, DC to evaluate the extent of the applicant's physical disability and to make a recommendation on his disposition.  Based upon a review of the medical evidence of record, the PEB concluded that the applicant's medical condition prevented satisfactory performance of duty in his grade and primary specialty.  The PEB specifically cited that the applicant's chronic bilateral ankle pain began in 2004 while attending basic combat training.  The PEB noted the applicant had reconstruction surgery on both of his ankles.  It was also noted that he had osteoarthritis in his right ankle, but both ankles were stable to gentle examination.  The PEB recommended a combined disability rating of 30 percent and permanent disability retirement.  On 15 October 2008, the applicant concurred with the findings and recommendations of the PEB.

4.  Item 25 (Separation Authority) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon separation indicates he was retired under the provisions of paragraph 4-24b(1) (Permanent retirement for physical disability) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  It also shows that based on the authority and reason for discharge, he was assigned a Separation Program Designator (SPD) code of SFJ in Item 26 (Separation Code) and an RE code of 4R in Item 27 (Reentry Code).  Item 28 (Narrative Reason for Separation) contains the entry "DISABILITY, PERMANENT."

5.  Counsel provides a REDD Report, dated 29 June 2009, which shows the applicant was retired from the enlisted ranks of the RA effective 30 December 2008 and that he was assigned an RE code of 4R and an SPD code of SFJ.  This form also shows he had a P3 physical limitation code in his physical profile at time he was accessed into the RA, based upon a physical examination in March 2002.  .

6.  Counsel provides a DD Form 2807-1 and a DD Form 2807-2, dated 22 July 2009, which show the applicant underwent a medical prescreen examination for possible reentry into the military on 22 July 2009 at the VA Medical Center located in Baltimore, Maryland.  After evaluating the applicant's medical history and his condition at the time, the examining physician opined that the applicant was "functioning at a healthy and age-appropriate level both physically and emotionally without restrictions" and recommended consideration of his request to return to duty.

7.  Army Regulation 635-40, paragraph 4-17 (PEB), provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  It is a fact-finding board for the following:

	a.  investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board;

	b.  evaluating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating;

   c.  providing a full and fair hearing for the Soldier as required under Title 10, U.S. Code, section 1214; and

	d.  making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

8.  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.  It states, in pertinent part, that an the SPD code SFJ is the appropriate code to assign to Soldiers who are retired under the provisions of Army Regulation 635-40, paragraph 4-24b(1) due to permanent disability.  The SPD/RE Code Cross Reference Table indicates that RE code 4R is the proper code to assign members separated with an SPD code of SFJ.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve (USAR).  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes.  An RE code of 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.  RE code 4R applies to persons retired from their last period of service who are ineligible for reentry.  Paragraph 4-25 of this regulation, in pertinent part, provides that Soldiers who were permanently retired by reason of physical disability are not eligible for reentry waivers.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant was permanently retired by reason of a physical disability and assigned the appropriate SPD code of SFJ and an 
RE code of 4R at the time of retirement.

2.  The fact that the applicant has obtained a recommendation for waiver consideration from a physician at a VA Medical Center does not preclude the fact that Army Regulation 601-210 provides that an RE code of 4R applies to persons retired from their last period of service with a nonwaivable disqualification and are ineligible for reentry.

3.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement and there is no basis for granting his 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)                                         AR20090014712



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ABCMR Record of Proceedings (cont)                                         AR20090014712



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