IN THE CASE OF:	  

		BOARD DATE:	  28 July 2011

		DOCKET NUMBER:  AR20110002390 


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 a change to his reentry eligibility (RE) code from RE-4 to an RE-3 so he may reenter the Army.

2.  The applicant states according to regulations, despite his 30% disability retirement, he can still serve in the Army National Guard but he would have to show an RE-3 code.  He has been trying to correct this RE error and enlist since 2001. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* medical documents

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 records show he enlisted in the Regular Army on 13 May 1980 and held military occupational specialties 12B (Combat Engineer) and 71L (Administrative Specialist).  He served in a variety of stateside and overseas assignments through multiple reenlistments and he attained the rank/grade of sergeant (SGT)/E-5.

3.  On 13 July 1989, a medical evaluation board (MEB) convened in Germany and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found he was diagnosed as having the medically-unacceptable conditions of anterior cruciate ligament instability to the left knee and post-traumatic degenerative arthritis to the left knee.  The MEB recommended he be referred to a physical evaluation board (PEB).  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

4.  On 20 July 1989, an informal PEB convened at Fort Gordon, GA, and found he was physically unfit due to instability of the left knee.  The PEB rated him with a 30% disability rating and recommended he be permanently retired.  The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing of his case.

5.  On 4 October 1989, he was honorably retired from the Army and he was placed on the Retired List in the rank/grade of SGT/E-5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(1), by reason of permanent disability.  This form also shows he completed 9 years, 4 months, and 22 days of creditable military service.  Item 26 (Separation Code) shows the entry "SFJ" and item 27 (Reentry Code) shows the entry "4."

6.  He submitted two medical documents, dated 24 November 2009 in relation to his medical conditions.  The documents describe a procedure to his knee. 

7.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Active Army, Army National Guard, and U.S. Army Reserve.  The regulation provides 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.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes.  Table 3-1 includes a list of Regular Army RE codes:

* 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
* 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
* RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD "SFJ" is the correct code for Soldiers separating under paragraph 4-24e (1) of Army Regulation 635-40 for permanent disability.

9.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "SFJ" had a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code should be changed from RE-4 so he may reenter the military.

2.  The applicant underwent a PEB that found him physically unfit to perform duties in his grade and specialty and recommended his permanent retirement.  At the time of his retirement, he received a separation code of "SFJ" and an RE code of "4."  The SPD code "SFJ" was the appropriate code for the applicant based on the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-40, paragraph 4-24e(1). Furthermore, such a discharge carries a reentry code of RE-4.  The SPD and RE codes entered on his DD Form 214 are consistent with the reason and authority for discharge.

3.  The applicant's RE code was assigned based on his separation due to physical disability.  The underlying reason for his discharge at the time was his medical disability that resulted in his permanent retirement.  The appropriate RE code associated with this type of discharge is RE-4 which is correctly shown on his DD Form 214.

4.  His desire to reenter the military is noted.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  His RE code is correct as shown and there is no reason to change it. 

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)                                         AR20110002390





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ABCMR Record of Proceedings (cont)                                         AR20110002390



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