IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100028382 


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 eligibility (RE) code be changed from "4" to a code that will allow him to reenter the military.

2.  The applicant states:

* he was released from the U.S. Army due to an involuntary medical condition that occurred while he was on active duty
* he was placed on the Temporary Disability Retired List (TDRL) due to prostrating headaches
* due to the findings of his last physical evaluation board (PEB) on 16 June 2008, he was released from the TDRL and honorably discharged
* his DD Form 214 (Certificate of Discharge or Release from Active Duty) shows his RE code as "4"
* as a result, his RE code of "4" should be changed so he can enlist in the National Guard or the Army

3.  The applicant provides:

* DD Form 214
* U.S. Army Physical Disability Agency Orders D189-06
* DA Form 199 (PEB Proceedings)


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 record shows he enlisted in the Regular Army (RA) on 25 July 2002.

3.  Orders 111-0368, issued by Headquarters, Joint Readiness Training Center and Fort Polk, Fort Polk, LA, dated 20 April 2004, show he was retired effective 5 May 2002 and placed on the TDRL effective 6 May 2002.  The DD Form 214 he was issued shows:

* he completed a total of 1 year, 9 months, and 11 days of active military service that was characterized as honorable
* item 23 (Type of Discharge) – "Retirement"
* item 25 (Separation Authority) – "Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Paragraph 4-24b(2)"
* item 26 (Separation Code) – "SFK"
* item 27 (Reentry Code) –"4"
* item 28 (Narrative Reason for Separation) – "Disability, Temporary"

4.  The PEB reevaluated all the available medical records on 16 June 2008 and found he was unfit to reasonably perform the duties required by his previous grade and military specialty.  His condition was considered sufficiently stable for final adjudication.

5.  Based on this review it was found that:

* he had migraine headaches that occurred three or four times a month and were rated as non-prostrating
* he had no documentation that showed he required medication or hospitalization
* his condition was rated a combined rating of "0" percent
* his physical condition was unfitting
* the PEB recommended that he be separated from the service with severance pay, if otherwise qualified

6.  On 19 June 2008, he concurred with the aforementioned findings and waived a formal hearing.

7.  Orders D189-06 issued by U.S. Army Physical Disability Agency, Washington, DC, dated 7 July 2008, show he was removed from the TDRL and discharged from the military on 7 July 2008 with entitlement to severance pay due to a permanent physical disability that was 0-percent disabling.

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities for separation (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 shows the SPD "SFK" as shown on the applicant's DD Form 214 specifies the narrative reason for separation as "Disability, Temporary."  The SPD/RE Code Cross-Reference Table shows that the appropriate RE code for the SPD code of SFK is RE-4.

9.  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 and processing into the RA, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE-4 applies to persons who are permanently disqualified for continued Army service.

10.  Army Regulation 601-210 prescribes in:

	a.  paragraph 5-52 that former enlisted members who do not reenlist in their respective component within 90 days of removal from the TDRL must meet all prior-service standards and qualifications at time of enlistment and

	b.  paragraph 5-53 that medical waivers for RA and U.S. Army Reserve enlistment may be considered for former enlisted members if:

		(1)  their physical condition has improved so that they meet retention criteria for active duty in Army Regulation 635-40 and

		(2)  their names have consequently been removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The PEB acted with a high degree of prudence and foresight.  The PEB considered the possibility that the applicant would recover fully and that he could be returned to active duty to resume his military service.  The PEB observed that the applicant's medical condition had not yet stabilized and that a period of time on the TDRL was appropriate.  The PEB placed the applicant on the TDRL as opposed to permanently retiring him immediately.

2.  The evidence shows the applicant was placed on the TDRL on 5 May 2002.  The fact that the applicant was ultimately found unfit for duty and removed from the TDRL on 16 June 2008 is no basis for changing the applicant's DD Form 214, dated 5 May 2002.  Therefore, the type of separation, the separation authority, and the narrative reason shown on the applicant's DD Form 214 are correct.

3.  By regulation, the RE code of "4" is the proper code to assign members separated under the provisions of Army Regulation 635-40 by reason of placement on the TDRL.  Therefore, the RE-4 code assignment was and remains valid.

4.  Notwithstanding the RE- 4 code assignment, paragraphs 5-52 and 5-53 of Army Regulation 601-210 allow for waiver consideration for enlistment.  He should inform recruiting officials of those sections in the regulation.  

5.  In view of the foregoing, there is no basis for granting his request.

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 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)                                         AR20100028382



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1