IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100024892 


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 change of his reentry (RE) code of 4R to an RE code that will enable him to reenter the Army.

2.  The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows an RE code of 4R due to a medical injury and placement on the temporary disability retired list (TDRL).  He further states he was taken off the TDRL as of 1 April 2010.

3.  The applicant provides 

* his DD Form 214 for the period ending 30 January 2008
* a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 22 October 2007
* a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 12 September 2007
* Orders 028-1308, issued by Headquarters, U.S. Army Maneuver Support Center, Fort Leonard Wood, MO, dated 28 January 2008
* DA Form 18 (Revised Physical Evaluation Board (PEB) Proceedings), dated 6 April 2010
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 9 March 2010
* his concurrence of the PEB's findings and recommendations, dated
22 March 2010
* 
Orders D092-17, issued by the U.S. Army Physical Disability Agency, Washington, D.C., dated 2 April 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 18 July 2007.  While undergoing basic training at Fort Leonard Wood, on 27 July 2007, he accidentally shot himself in the left foot while trying to clear his weapon.

2.  The applicant entered the Army Physical Disability Evaluation System (PDES).  He was found physically unfit with a 30 percent (%) disability rating percentage.  On 30 January 2008, he was honorably retired by reason of temporary disability and he was placed on the TDRL on 31 January 2008.  He had completed 6 months and 13 days of creditable active service.

3.  The applicant's DD Form 214 shows in:

* Item 23 (Type of Separation) the entry "RETIREMENT"
* Item 24 (Character of Service) the entry "HONORABLE"
* Item 25 (Separation Authority) the entry "AR [Army Regulation] 635-40, PARA [Paragraph] 4-24B(2)
* Item 26 (Separation Code) the entry "SFK"
* Item 27 (Reentry Code) the entry "4R"
* Item 28 (Narrative Reason for Separation) the entry "DISABILITY, TEMPORARY"

4.  On 2 April 2010, the applicant was removed from the TDRL and discharged from the service with severance pay because of permanent physical disability with a disability rating of 20%.

5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  It provides:

	a.  The TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  

Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.

	b.  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30% or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

6.  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, in pertinent part, that the SPD code "SFK: is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(2), by reason of disability, temporary.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of "SFK."

7.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative  further 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 U.S. Army Reserve (USAR).  Table 3-1 included 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.

	d.  RE-4R applies to Soldiers who retired for length of service with 15 or more years of active Federal service.  They are ineligible for enlistment.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The
DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  It states a DD Form 214 will not be prepared for a Soldier removed from the TDRL.

9.  Army Regulation 601-210, section XII, states that as the result of a periodic physical examination, a former Army enlisted member may be determined physically fit for return to duty.  If so, the member may be enlisted in the RA or USAR and if requirements of this section are met.  Enlistments within 90 days of removal from the TDRL will be made without regard to basic enlistment qualifications for prior service (PS) persons described in chapter 3 of this regulation.  Such persons will be enlisted in the permanent pay grade held on the day before the date their names were placed on the TDRL.  Former enlisted members who do not enlist in their respective component within 90 days of removal from the TDRL must meet all PS standards and qualifications at time of enlistment.

DISCUSSION AND CONCLUSIONS:

1.  When the applicant was removed from active duty by reason of temporary physical disability and placed on the TDRL, the applicant received a DD Form 214.  That DD Form 214 correctly reflected his separation authority, SPD code, and RE code that deemed him ineligible to reenter military service.

2.  When a TDRL physical re-examination found his condition had stabilized, the applicant's disability rating was changed from 30% to 20%.  He was determined to be permanently disabled with entitlement to severance pay.  This no longer permitted him to remain on the TDRL; therefore, he was removed from the TDRL by U.S. Army Physical Disability Evaluation Agency orders and discharged accordingly.

3.  In view of the foregoing, there is insufficient basis to grant the applicant's request.  Although the applicant was properly issued an RE code of 4 based upon his temporary disability retirement, there are regulatory provisions that will allow him to apply for a waiver to enlist.  The applicant should make his recruiting officials aware of the provisions of Army Regulation 601-210, section XII, as outlined above.

4.  It is noted that the applicant’s DD 214 shows his RE code as 4R (i.e. retirement for length of service).  By Army Regulation 635-5-1 and the SPD/RE Code Cross Reference Table, he should have been assigned an RE code of 4 based on his separation authority, SPD code, and narrative reason for separation.  However, to change the applicant’s RE code from 4R to 4 would not affect the outcome of this case.  Therefore, no action will be taken on this issue.

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)                                         AR20100024892



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ABCMR Record of Proceedings (cont)                                         AR20100024892



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