BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100015140 


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 reinstatement in the Active Guard Reserve (AGR) Program.  She also requests, in effect, a personal appearance to speak to the Board on her own behalf.

2.  She states:

* she wants to continue her career as an AGR Soldier and complete
20 years
* documentation leading to her discharge was misleading
* her performance as a supply sergeant wasn't neglected
* she was being harassed and verbally mistreated by her command due to her limitations during her Medical Evaluation Board (MEB)
* her focus was only on solving their issues as well as performing her duties to the best of her abilities
* she failed to look out for her career
* she has noticed a remarkable difference in her capabilities and she would have no problem continuing her career as a senior supply sergeant  

3.  She provides her:

* Physical Evaluation Board (PEB) proceedings
* DD Form 214 (Certificate of Release or Discharge from Active Duty)


CONSIDERATION OF EVIDENCE:

1.  Having prior Regular Army service, she was ordered to active duty in a U.S. Army Reserve (USAR) AGR status on 28 September 2003.

2.  The applicant's NCO (Noncommissioned Officer) Evaluation Report for the period ending 26 May 2009 shows her rater indicated that although she was on profile and was unable to participate in the Army Physical Fitness Test she was able to perform all assigned duties.  She had been rated as a senior supply sergeant, and her duties including being the arms room custodian for over      200 weapons.

3.  The applicant's DA Form 3349 (Physical Profile), dated 19 June 2009, indicated she had a profile for low back pain/degenerative disc disease (DDD), neck pain/DDD, and chronic headaches.  She was found to be unable to carry and fire her assigned weapon; to move with a fighting load of at least 2 miles; to construct an individual fighting position, or to do a 3-5 second rush under fire.  She was not to do physical training, not to wear body armor, not to lift over 10 pounds, or to stand for more than 5 minutes.

4.  The applicant's MEB proceedings are not available for review. 

5.  On 10 July 2009, a PEB found the applicant physically unfit due to:

* right (dominant) cervical radiculopathy from cervical intervertebral disk syndrome evaluated as neuritis, upper radicular group 
* cervical intervertebral disk syndrome
* chronic low back pain since 2006 that prevents effective duty in primary military occupational specialty
* headaches since 2004 during Kuwait deployment, evaluated as migraine headaches 

6.  The PEB recommended a combined 40 percent (%) disability rating percentage and the applicant be permanently retired.  On 13 July 2009, the applicant concurred with the PEB's findings and waived a formal hearing.

7.  The U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and recommendations on 31 July 2009.

8.  She was retired by reason of permanent disability on 29 October 2009.  She had completed a total of 12 years, 9 months, and 9 days of creditable active service and 6 years, 1 month, and 2 days of prior inactive service.

9.  Item 25 (Separation Authority) of her DD Form 214 shows the entry "AR [Army Regulation] 635-40, PARA [Paragraph] 4-24b(1)."  Item 26 (Separation Code) shows the entry "SFJ."  Item 27 (Reentry Code) shows the entry "4."  Item 28 (Narrative Reason for Separation) shows the entry "DISABILITY, PERMANENT." 

10.  Army Regulation 635-5-1 (Separation Program Designator (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's to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code SFJ is "Disability, Permanent" and the regulatory authority is Army Regulation 635-40, paragraph 4-24b(1).

11.  Pertinent Army regulations provide 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 processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes.

12.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers assigned an SPD of SFJ will be assigned an RE code of 4.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) governs operations of the ABCMR.  Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR.  It further states the Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, she concurred with the findings and recommendation of the PEB and she was permanently retired with an RE code of 4.

2.  Although the applicant's last evaluation report indicated she could perform her duties despite her profile, her duties including being the arms room custodian.  With physical profile limitations that included the prohibition of lifting over 10 pounds and carrying her assigned weapon, it is difficult to see how she could have performed some of her duties.  For example, the M249 (the Squad Automatic Weapon) weighs 17 pounds; a loaded M-16 weighs 9 pounds

3.  Since her RE code is for a non-waivable disqualification, there is no basis for granting her request for reinstatement in the AGR Program.

4.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice 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)                                         AR20100015140



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ABCMR Record of Proceedings (cont)                                         AR20100015140



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