IN THE CASE OF:	  

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090019864 


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 an upgrade of her reentry eligibility (RE) code from RE-4 to a more favorable code so she may reenter the Army.

2.  The applicant states that at the time of her discharge she had just had a baby and she was so ill she thought she would not survive the whole process.  Army officials rushed her through the medical retirement process so her family would receive benefits.  She was in a coma and she was unable to walk.  It has now been 7 years since her retirement and she has recovered well.  She works as a restaurant manager and she recently received a clean bill of health.  She would like to reenter the U.S. Army Reserve (USAR).

3.  The applicant provides the following documents:

* a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 July 2002
* a statement from her doctor, dated 4 November 2009, listing her past medical history, current medications, and overall medical status
* a copy of her Resume

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 records show she enlisted in the Regular Army (RA) on 1 October 1996 and held military occupational specialty (MOS) 31F (Network Switching Systems Operator/Maintainer).  She also executed a 4-year reenlistment in the RA on 15 November 1999.  The highest rank/grade she attained was private first class (PFC)/E-3.

3.  On 4 July 2002, an informal physical evaluation board (PEB) convened at Fort Sam Houston, TX, and found her physically unfit due to status post-emergency hysterectomy.  The PEB rated the applicant with a 100 percent (%) disability percentage and recommended she be placed on the Temporary Disability Retired List (TDRL) with reexamination in August 2003.  The applicant concurred with the PEB's findings and recommendation and waived her right to a formal hearing of her case.

4.  On 4 July 2002, she was honorably retired from the Army and she was placed on the TDRL in her retired rank/grade of PFC/E-3.  Her DD Form 214 shows she was retired in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(2), by reason of temporary disability.  This form also shows she completed 5 years, 9 months, and 4 days of creditable military service.  Item 26 (Separation Code) shows the entry "SFX" and item 27 (Reentry Code) shows the entry "4."

5.  On 4 June 2008, the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, published Orders D156-10, administratively removing her from the TDRL, effective 5 July 2007, for having failed to complete a scheduled physical reexamination required by law and having met the 5-year maximum tenure on the TDRL in accordance with Army Regulation 635-40, paragraph
7-11b(4).

6.  In the processing of this case, on 27 April 2010, an advisory opinion was obtained from the Chief, Recruiting Policy Branch, Office of the Deputy Chief of 

Staff, G-1, Washington, DC.  The advisory official recommended disapproval of the applicant's request and confirmed that she received the appropriate RE code. 
Current policies provide that individuals found fit for duty and removed from the TDRL are eligible to reenter the Active Army or its Reserve Components if accomplished within 90 days of removal from the TDRL.  Supporting documents in the applicant's case indicates she was administratively removed from the TDRL because of multiple failures to complete her periodic medical evaluations as required by law.  Policies also state that former enlisted members who do not enlist in their respective component at the time of placement on the TDRL must meet all prior service standards and qualifications at the time of enlistment.  Further, Army policy states that personnel that received an RE-4 at the time of separation are ineligible for reentry.

7.  On 29 April 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

8.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) states, in pertinent part, 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.  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 USAR.  Table 3-1 includes a list of the RA RE codes:

* RE–1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

* RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

9.  Army Regulation 601-210 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.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The "SFK" Separation Code is the correct code for Soldiers separating under paragraph 4-24B(2) of Army Regulation 635-40 for temporary disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her RE code should be upgraded from RE-4 to a more favorable code so she may reenter the Army.

2.  The applicant’s retirement was based on the fact that she underwent a PEB that found her physically unfit to perform duties in her grade and specialty and recommended placing her on the TDRL.

3.  At the time of her retirement, she received a separation code of SFK and an RE code of "4."  The SPD code of SFK was the appropriate code for the applicant based on the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-40, paragraph 4-24B(2).  Furthermore, such a discharge carries a reentry code of RE-4.  The SPD and RE codes entered on her DD Form 214 are consistent with the reason and authority for discharge.

4.  The applicant’s RE code was assigned based on the fact that she was separated due to her physical disability.  The underlying reason for her discharge was her medical disability that resulted in her temporary retirement.  The only valid narrative reason for separation permitted under that paragraph is "Retirement” and the appropriate RE code associated with this discharge is
RE-4, which is correctly shown on her DD Form 214.

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief.

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)                                         AR20090019864



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ABCMR Record of Proceedings (cont)                                         AR20090019864



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