BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100028451 


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 be changed. 

2.  The applicant states:

* His RE code is in error
* He has been cleared by Department of Veterans Affairs (DVA) doctors as no longer being disabled and no longer having the symptoms of the disability he was rated permanently disabled for
* It has been 10 years since he was rated permanently disabled and in that time his disability has disappeared completely
* He no longer has any desire to be on the permanently retired list
* He is presently collecting and updating his medical records and wishes to have his RE code updated to his present status
* The record is in error because it reflects a time when the disability seemed as though it would be permanent
* After a number of years and many check-ups with doctors, he realizes he no longer has a disability and should not be treated as such and he would like his military record amended  

3.  The applicant provides:

* Consultation sheets, dated 11 November 2010 and 18 November 2010
* Medical record, dated 8 October 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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.  He enlisted in the Regular Army on 27 December 1995 and trained as an avenger crewmember.  His disability proceedings are not available.  On 
21 December 1997, he was retired and placed on the Temporary Disability Retired List (TDRL) the following day.  

3.  Item 25 (Separation Authority) of his DD Form 214 shows the entry "AR [Army Regulation] 635-40, PARA [paragraph] 4-24B(2).”  Item 26 (Separation Code) on his DD Form 214 shows the entry "SFK."  Item 27 (Reentry Code) on his DD Form 214 shows the entry "4."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry "DISABILITY, TEMPORARY.”

4.  On 12 May 2000, he was removed from the TDRL and permanently retired with 40 percent disability rating.   

5.  In support of his claim, he provided DVA medical records dated 2010.

6.  Paragraph 4-24b(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that based upon the final decision of the U.S. Army Physical Disability Agency or Army Physical Disability Appeal Board, U. S. Army Personnel Command will issue retirement orders or other disposition instructions for placement on the TDRL.

7.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designator codes to be used for these stated reasons.  The regulation 


states the reason for discharge based on separation code “SFK” is “Disability, Temporary” and the regulatory authority is Army Regulation 635-40, paragraph 
4-24b(2).  

8.  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 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. 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.  

9.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

10.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

11.  RE-1 applies to persons who were fully qualified when last separated.

12.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 20 September 1993, shows that when the SPD [Separation Program Designator] is "SFK" then an RE code of 4 will be given.  

13.  Army Regulation 601-210, paragraph 4-5(b) states any applicant who was last separated or discharged from any Component of the Armed Forces for medical reasons with or without disability will require a waiver for enlistment into the Regular Army or Army Reserve.  Paragraph 4-25(m) states persons receiving retired, retirement, or retainer pay, except for combat-wounded personnel, have a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  He contends his RE code is in error since he no longer has a disability and he was cleared by DVA doctors.

2.  Evidence shows he was separated from active duty and placed on the TDRL.  By regulation, this mandated he be assigned an RE code of 4 upon his release from active duty because he then received retired pay.  Therefore, his RE code was administratively correct and in conformance with applicable regulations at the time of separation.  


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)                                         AR20100028451





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ABCMR Record of Proceedings (cont)                                         AR20100028451



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