BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100013607 


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 (RE) code of “4” on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to a “2” or a “3” for the purpose of enlisting in the Navy.   

2.  The applicant states he discovered the error through a recruiter, who informed him that he had been removed from the Temporary Disability Retired List (TDRL), discharged, and issued an Honorable Discharge Certificate. 

3.  The applicant claims to have provided a copy of a Department of Veterans Affairs (VA) document.  However, this document was not attached to 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’s records contain a DD Form 4 (Enlistment/Reenlistment Document) which indicates he initially enlisted in the Mississippi Army National Guard (MSARNG) on 27 April 1999 for a period of 8 years.  

3.  His records contain a DA Form 2173 (Statement of Medical Examination and Duty Status) showing that he sustained a left mid-shaft/3rd metatarsal stress fracture on 5 July 1999 while attending basic combat training at Fort Jackson, SC.  This form indicates he was in an active duty for training status at the time and the injury was considered to be in the line of duty.  

4.  A copy of a National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the MSARNG and as a Reserve of the Army on 6 August 2001 for the purpose of enlistment in the Regular Army.  

5.  A second DD Form 4 (Enlistment/Reenlistment Document) shows he enlisted in the Regular Army on 7 August 2001 for a period of 3 years.  His DD Form 214 shows he was honorably discharged on 12 November 2004 by reason of temporary disability and his name was placed on the TDRL the following day.  His separation document indicates he received an RE code of “4” and a separation code of “SFK.”

6.  A copy of Orders 267-0001, Directorate of Human Resources, Schofield Barracks, Hawaii, dated 23 September 2004, shows the applicant was retired because of physical disability incurred while entitled to basic pay.  He was placed on the TDRL on 13 November 2004 in the grade of specialist, E-4 and was granted a disability rating of 30 percent.

7.  A review of the Human Resources Command - Integrated Web Services (IWS) indicates the applicant’s name was never removed from the TDRL.  Other than his DD Form 214 for the period ending 12 November 2004, his 2004 retirement orders, and a copy of a DA Form 2173, there were no other documents in the available records associated with his disability processing.

8.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the Department of Defense Form 214 (Certificate of Release or Discharge from Active Duty).  In pertinent part, it directs that a DD Form 214 will be prepared at the conclusion of a period of active Federal service.  An individual whose name is placed on the TDRL is considered to have been released from active Federal service and as such is issued a DD Form 214.  While on the TDRL individuals do not accumulate active Federal service and as such when their names are removed from the TDRL and either returned to duty, permanently retired, or discharged from the service, a new DD Form 214 is not issued as they are not in an “active” status.  

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-4 applies to individuals who were separated from their last period of service with a non-waivable disqualification.  Soldiers who were separated, discharged, or retired from their term of service because of physical disability are ineligible for reenlistment and receive an RE-4.

10.  Army Regulation 601-210 states that individuals enlisting in the Regular Army within 90 days of removal from the TDRL will be made without regard to basic enlistment qualifications for prior service persons.  It also states that enlistment of former enlisted members who do not reenlist in their respective component within 90 days of the removal date from the TDRL must meet all prior service standards and qualifications at the time of enlistment.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  It notes that “SFK” is the appropriate SPD code for individuals retired and their names placed on the TDRL.

12.  A “cross-reference” chart, provided by officials from the separations branch at the Army’s Human Resources Command, confirms that “RE-4” is the appropriate RE code for individuals who receive an SPD code of SFK.

13.  Army Regulation 635-40, which establishes the policies and provisions for physical evaluation for retention, retirement, or separation of Army Soldiers, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.  Following reevaluation, and once it has been determined that the individual’s medical condition has stabilized, the individual could ultimately be found fit, permanently retired providing his final disability rating was at 30 percent or higher, or, in cases where the final disability rating was less than 30 percent, entitled to disability severance pay.  Only individuals whose final disability rating is 30 percent or higher are considered permanently retired by reason of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change his RE code from a “4” to a “2” or “3” was carefully considered; however, is not supported by the evidence of record.  

2.  There is no evidence in the IWS nor has the applicant provided any which shows he was removed from the TDRL.  If in fact he has been removed from the TDRL and has been found fit following his TDRL examination, this action in and of itself will not change the basis for his 12 November 2004 retirement.  

3.  The information contained on his DD Form 214 for the period ending            12 November 2004 would not have been “updated” to reflect the applicant’s final medical disposition in the year 2009.

4.  The applicant contends he has been provided an opportunity to enlist in the U.S. Navy; however, this fact does not indicate any error or injustice in the RE code reflected on his 2004 separation document, nor dictate a change in the code.

5.  The applicant was separated from active duty because of disability and as such, he received an SPD code of SFK and an RE code of 4.  The RE code was proper, based on the circumstances of his 2004 separation.  He has failed to submit sufficient evidence or a probative argument to indicate that his DD Form 214 contains an incorrect RE code.  Therefore, there is no basis to grant the requested 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)                                         AR20100013607



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ABCMR Record of Proceedings (cont)                                         AR20100013607



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