IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100029944 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his reentry eligibility (RE) code from 3 to 1.

2.  The applicant states:

	a.  he would like his RE code changed from 3 to 1 to allow his enlistment in the U.S. Air Force and 

	b.  according to the Department of Veterans Affairs (VA), his knee has been repaired.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214
* Birmingham VA Medical Center surgical information (9 pages)

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 military records show he enlisted in the Regular Army on 15 November 2000.  He completed basic combat training at Fort Jackson, South Carolina.

3.  On 29 April 2002, the U.S. Army Transportation Center, Fort Eustis, Virginia, issued Orders 119-004 directing the applicant's reassignment to the U.S. Army Transition Center for transition processing and discharge from the Army effective 8 May 2002 with entitlement to disability severance pay under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

4.  On 8 May 2002, the applicant was honorably discharged after completing 1 year, 5 months, and 24 days of total active service.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of "disability with severance pay."  Item 26 (Separation Code) shows he was assigned a separation program designator (SPD) code of "JFL."  Item 27 (Reentry Code) shows he was assigned an RE-3 code.

5.  The applicant provides a 9-page surgical information report from the Birmingham VA Medical Center, dated 23 March 2010.  It details the "right knee arthroscopic debridement" procedure he underwent on 23 March 2010.

6.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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.  Paragraph 4-24b(3) of this regulation provides for the separation of a member for physical disability with severance pay when the final decision is directed by the U.S. Army Physical Disability Agency.

7.  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 Regular Army, 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-3 applies to members who are considered not fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  RE-4 applies to members who are disqualified from future enlistment.

8.  Army Regulation 635-5-1 (Separation Program Designator 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 that SPD code "JFL" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of disability with severance pay.  The SPD/RE Code Cross Reference Table in effect at the time established RE-3 as the appropriate code to assign to members separated under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be changed from 3 to 1 to allow his enlistment in the U.S. Air Force was carefully considered and found to be without merit.

2.  The evidence of record confirms the applicant was discharged under the provisions of Army Regulation 635-40, paragraph 2-24b(3), by reason of disability with severance pay.  By regulation, RE-3 is the proper code to assign to members separated under these provisions of the regulation.  As such, his assigned RE-3 code at the time of his discharge was and still is appropriate based on the authority and reason for his separation.  Accordingly, there is no basis for granting the applicant's requested relief.

3.  The applicant is advised that although no recommendation is being made for a change to his RE code, this does not mean he is permanently disqualified from enlistment.  An RE-3 code applies to members who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  Therefore, if he desires to reenter military service, he should contact a local recruiter who is best qualified to determine his eligibility based on the military service and who can process an RE code waiver.


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)                                         AR20100029944



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ABCMR Record of Proceedings (cont)                                         AR20100029944



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