IN THE CASE OF:
BOARD DATE: 13 April 2010
DOCKET NUMBER: AR20090015434
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 reconsideration of the Army Board for Correction of Military Records (ABCMR) denial to change his reentry eligibility (RE) code 4 to a favorable code to enable him to reenter the Army.
2. The applicant states he wants to enlist in the Army or be permanently medically retired from the Army.
3. The applicant provides a copy of his orders removing him from the Temporary Disability Retired List (TDRL), two pages from the U.S. Army Human Resources Command Integrated Web Services Soldier Management System, and his previous denial from the ABCMR.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090002671 on 13 August 2009.
2. The applicant submitted a copy of his orders removing him from the TDRL. This document is new evidence which requires his case be reconsidered by the ABCMR.
3. The applicant's military personnel records show he enlisted in the Regular Army on 17 June 1999. He completed basic combat training and advanced individual training and was awarded military occupational specialty 21B (Combat Engineer).
4. The proceedings from the applicant's medical evaluation board (MEBD) and the findings and recommendation from his physical evaluation board (PEB) were not available for review.
5. On 14 November 2003, the applicant was retired and placed on the TDRL. He had completed 4 years, 4 months, and 28 days of active service that was characterized as honorable.
6. The narrative reason for separation is listed as "disability, temporary" on his DD Form 214 (Certificate of Release or Discharge from Active Duty). He was assigned a separation program designator (SPD) code "SFK" and an RE code 4.
7. The SPD/RE Code Cross-Reference Table, dated 31 March 2003, shows that the appropriate RE code for SPD code "SFK" is RE-4.
8. U.S. Army Physical Disability Agency, Walter Reed Army Medical Center, Washington, DC, Orders D048-03, dated 17 February 2006, removed the applicant from the TDRL and discharged him from the service with a 0-percent disability rating effective 17 February 2006. Additional instructions in the orders stated he was entitled to severance pay provided he had completed over 6 months of service.
9. The applicant received a physical on 19 February 2009 for the evaluation of asthma from the Georgetown Sleep Center. The examiner found no evidence of restrictive or obstructive ventilator defect on pulmonary function testing. The examiner stated the applicant's previous diagnosis of persistent asthma was likely exacerbated by smoking. The examiner noted the applicant quit smoking 3 years ago.
10. Army Regulation 601-210 states that former enlisted members who do not reenlist in their respective component within 90 days of removal from the TDRL must meet all prior service standards and qualifications at the time of enlistment.
Paragraph 5-53 of this regulation provides procedures for requesting medical waivers for Regular Army and U.S. Army Reserve enlistments.
11. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
12. Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should have his RE code changed so he can enlist in the Army or be permanently medically retired.
2. According to the orders removing him from the TDRL, the applicant's disability rating was 0 percent. Therefore, he does not meet the requirement of having a disability rated at least 30 percent for a permanent physical disability retirement.
3. According to the SPD/RE Code Cross-Reference Table, the appropriate RE code for the SPD code "SFK" is RE-4. This reflects the applicant's reenlistment eligibility at the time of his release from active duty. Therefore, the assigned RE code of RE-4 is administratively correct.
4. A medical examination over 5 years after he was temporarily retired for disability does not change his status as of the date he was retired.
5. The applicant is advised that although his RE code was properly assigned, this does not mean he is totally disqualified from returning to military service.
6. Army Regulation 601-210 provides procedures for requesting a waiver for a Soldier who was removed from the TDRL and whose physical condition has improved so as to meet retention criteria for active duty. The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him as to the needs of the service and may process a medical waiver for enlistment. He should refer the recruiter to the regulation if the recruiter has any doubts that he is eligible for an enlistment waiver consideration.
7. 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 that 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 to amend the decision of the ABCMR set forth in Docket Number AR20090002671, dated 13 August 2009.
____________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) AR20090015434
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ABCMR Record of Proceedings (cont) AR20090015434
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