IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090021880 


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, correction of items 25 through 28 of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he received a disability discharge and was assigned a separation program designator (SPD) code of JFL and reentry eligibility (RE) code of 3 based on the authority and reason for his discharge.  He claims military medical personnel told him he had asthma and he just did what he was told.  He states he now knows he was not being treated fairly, but merely removed from the infantry for failing to keep up physically.

3.  The applicant further claims both the Department of Veterans Affairs and his doctor have cleared him of any asthma, indicating he may have suffered from a climate condition that was misdiagnosed.  He further states prior to being seen by a specialist, he was informed he had asthma after only having x-rays done.  The specialist told him he did not have asthma, but did say he had exercise- induced asthma which very well could have been climate-induced, which is not the same as asthma.  He states it may use the same word, but is not the same problem.  Moreover, the Army does not typically discharge members for exercise-induced asthma.  Even asthma is far down the list of reasons for discharge.  He states he would once again like to serve, but much is preventing this because the Army is not treating him fairly.

4.  The applicant also states he was run around for almost a year because he was losing consciousness and experiencing chest pain and shortness of breath during physical training after his return from Iraq to Fort Drum, New York, where temperatures were drastically lower.  On top of that he was a smoker and had just returned from a month of leave.  However, medical staff disregarded these factors and even drove his mother and him to make a Congressional inquiry, which he chose to avoid because of potential consequences if he remained in his unit.

5.  The applicant states he did see a pulmonologist who tested him and concluded he did not suffer from asthma.  This doctor wrote a letter supporting the applicant's limited service and hence he was discharged.  He states at the time he was receiving a lot of grief for not doing anything and did not fight for treatment.  He concludes by simply stating he has no condition impairing him from military service and desires his DD Form 214 be corrected to reflect this.

6.  The applicant provides no documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 4 January 2005.  He was trained in and awarded military occupational specialty 11B (Infantryman).  The record also shows he was promoted to specialist/E-4 (SPC/E-4) on 1 December 2006 and this is the highest grade he attained while serving on active duty and that he served in Iraq from 11 August 2005 through 23 July 2006.

2.  On 4 October 2007, a physical evaluation board (PEB) convened at Walter Reed Army Medical Center, Washington, DC, to consider the applicant's case.  The PEB found the applicant physically unfit under Veterans Affairs Schedule of Rating Disability code 6602 (asthma).  The PEB recommended a combined disability rating of 10 percent and that he be separated with severance pay.

3.  The applicant concurred with the findings and recommendations of the PEB and it was approved on behalf of the Secretary of the Army on 18 October 2007.  On 19 December 2007, the applicant was discharged accordingly.

4.  The DD Form 214 issued to the applicant upon his discharge on 19 December 2007 confirms he was separated under the provisions of paragraph 4-24h(3), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) in item 25 (Separation Authority).  It also shows the reason for his discharge as "physical disability with severance pay" in item 28 (Narrative Reason for Separation).

5.  Item 26 (Separation Code) of the applicant's DD Form 214 shows he was assigned an SPD code of JFL and item 27 (Reentry Code) shows he was assigned an RE code of 3.

6.  Army Regulation 635-40 contains guidance on the Army's Physical Disability Evaluation System.  Chapter 4, section VI, contains guidance on disposition subsequent to adjudication and paragraph 4-24h(3) provides for the discharge of members by reason of physical disability with severance pay.

7.  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 U.S. Army Reserve.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment which 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.

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 the SPD code JFL is the appropriate code to assign to Soldiers separated under the provisions of paragraph 4-24h(3), Army Regulation 635-40, by reason of disability with severance pay.  The SPD/RE Code Cross Reference Table provides 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 DD Form 214 should be corrected to reflect he suffers from no disqualifying medical condition by correcting items 25-28 to allow him to reenlist has been carefully considered.  However, the evidence is not sufficient to support his claim.

2.  The evidence of record confirms the applicant was properly processed through the Physical Disability Evaluation System, 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.  Further, there is no medical evidence of record or independent evidence provided by the applicant that supports his assertion he was misdiagnosed with asthma.  As a result, the authority and reason for his discharge and the corresponding assigned SPD and RE codes remain valid.

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)                                         AR20090021880



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ABCMR Record of Proceedings (cont)                                         AR20090021880



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