IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100007490 


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 his Reentry (RE) code of 4 be changed to a more favorable RE code.  

2.  The applicant states the following:

* He does not believe his condition warranted an RE code of 4 at that time of discharge
* It is his understanding that an RE code of 4 is assigned when reentry is unlikely or not desirable
* He was not unfit for duty, but was unfit for deployment at that time
* His condition was not properly investigated by the military
* He was declared fit for active duty 1 year later by the Department of Veterans Affairs (VA) Neurology team
* His RE code unjustly limits his ability to appeal his medical discharge under the terms of Army Regulation 40-501, paragraph 2-26(j)
* His RE code does not give him the ability to attempt to meet the qualifications as cited in Army Regulation 40-501, paragraph 2-26(j)
* He is currently serving in Afghanistan with no limitations to his operational capabilities
* He has passed every electroencephalogram (EEG) and electrocardiogram (EKG) since his discharge
* He is a highly qualified applicant who desires to continue serving this country 

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 12 July 2001 for 4 years.

3.  On 6 April 2004, the applicant was evaluated by a Medical Evaluation Board (MEB) and was diagnosed as having myoclonic epilepsy and chronic migraine headaches.  He was referred to a Physical Evaluation Board (PEB).

4.  On 26 April 2004, an informal PEB determined the applicant was medically unfit for military service due to juvenile myoclonic epilepsy with two seizures in five months with a combined disability rating of 40 percent.  The PEB recommended the applicant be placed on the TDRL with reexamination during May 2005.  

5.  On 8 August 2005, an informal PEB determined the applicant was medically unfit for military service due to juvenile myoclonic epilepsy with last seizure more than one year ago.  The PEB recommended the applicant be separated with severance pay and with a combined disability rating of 20 percent.  

6.  The applicant was released from active duty on 30 June 2004 under the provisions of Army Regulation 635-40, paragraph 4-24b(2) based on a temporary physical disability.  On the following day, he was placed on the Temporary Disability Retired List (TDRL).  He completed 2 years, 11 months, and 19 days of active military service.  

7.  The applicant's DD Form 214 shows he was issued an RE code of RE-4.

8.  Item 26 (Separation Code) on the applicant's DD Form 214 shows the Separation Program Designator (SPD) code of "SFK" (Physical Disability, Temporary).

9.  Orders published on 25 August 2005 show the applicant was removed from the TDRL and discharged from the service on 29 August 2005 due to permanent physical disability with a 20 percent disability rating.  

10.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, shows that the SPD code of “SFK” as shown on the applicant’s DD Form 214 specifies the narrative reason for an involuntary discharge "Physical Disability-Temporary” and that the authority for discharge under this SPD is “Army Regulation 635-40, paragraph 
4-24B(2)."  

11.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disabilities that are of such a degree that the Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

12.  Army Regulation 635-200 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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 includes a list of the RA RE codes:

	a.  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.

	b.  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. 

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

13.  Paragraph 2-26 of Army Regulation 40-501 (Standards of Medical Fitness) states epilepsy occurring beyond the 6th birthday, unless the applicant has been free of seizures for a period of 5 years while taking no medication for seizure control and has a normal EEG, is disqualifying.  All such applicants will have current neurology consultation with current EEG results.  

14.  Paragraph 3-16c of Army Regulation 601-210 states enlisted members on the TDRL, later found to be physically fit, have a statutory right to enlist in the enlisted rank or the next higher regular enlisted rank held at the time they were placed on the TDRL.  All Soldiers being removed from the TDRL must have a grade determination by the Commanding General, U.S. Army Recruiting Command.

15.  Paragraph 5-53a of Army Regulation 601-210 states medical waivers for RA and USAR enlistment may be considered for former enlisted member if:

	a.  Their physical condition has improved so that they meet retention criteria for active duty in Army Regulation 635-40.

	b.  Their names consequently have been removed from the TDRL.  

16.  Paragraph 5-55 of Army Regulation 601-210 states persons enlisted under this section will be required, before enlistment, to waive present entitlement to disability retirement or severance pay.  These persons will not be denied severance or disability retirement compensation when ultimately separated or retired from service.  At that time the disqualifying defect will be reevaluated under physical standards in effect when the defect was first determined and standards in effect at the time of final evaluation.  The service member will be separated or retired under the standards most advantageous to him.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions regarding his RE code are acknowledged.  However, the available evidence does not indicate that an error or injustice exists in this case.  

2.  The applicant contends he does not believe his condition warranted an RE code of 4.  However, in the absence of evidence to the contrary, it appears that a PEB found the applicant unfit for military service.  As a result, he was retired from active duty on 30 June 2004 under the provisions of Army Regulation 635-40, paragraph 4-24b(2) due to physical disability – temporary and he was properly assigned an RE code of 4.  

3.  The RE code of 4 is normally not waivable.  However, Army Regulation      601-210 provides for medical waivers for RA and USAR former enlisted members if their physical condition has improved so that they meet the retention criteria for active duty in Army Regulation 635-40 or their names consequently have been removed from the TDRL.  
4.  The applicant’s contentions that he was not unfit for duty, but he was unfit for deployment, and his condition was not properly investigated by the military are not substantiated by the available evidence.    

5.  The applicant's contention that he was declared fit for active duty 1 year later by the VA Neurology team does not necessarily demonstrate an error or injustice on the part of the Army.  

6.  The applicant's RE code is based on his reason for separation and cannot be changed unless the applicant's narrative reason for separation (disability, temporary) is changed.  There is no basis upon which this reason should be changed.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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)                                         AR20100007490



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)