BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004494 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the correct:

* Separation Code
* Reentry (RE) Code
* Period of inactive duty
* Period in the Delayed Entry Program

2.  The applicant states:

* She has attempted to reenter the military since the year 2000, before her 39th birthday, but the local recruiter recommended she attain a higher education
* In 2002, after her 41st birthday, she received her associate degree but she was told she was over the age
* In 2004, at her 43rd birthday, she was told by the Army National Guard enlistment office she needed to clear her record of a misdemeanor (a false arrest that was later cleared up)
* Her DD Form 214 listed her separation code of "JFL" as an involuntary instead of a voluntary separation
* Her RE code of "4" prevents her from reentering the military; by regulation, she met the criteria to reenter the military with a waiver
* She is due military pay and allowances after correction of her promotion records (error in 1991 - 1993) to the rank of staff sergeant/E-6

3.  The applicant provides her DD Form 214.

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 she enlisted in the U.S. Army Reserve under the DEP on 19 July 1985.  She was discharged from the DEP 3 months and 16 days later on 3 November 1985 for the purpose of enlisting in the Regular Army (RA).

3.  She enlisted in the RA for 3 years on 4 November 1985 and held military occupational specialty 92Y (Unit Supply Specialist).  She served in Germany from April 1986 to March 1989 during which she executed a 5-year reenlistment on 7 March 1989.  She also attained the rank/grade of sergeant (SGT)/E-5 on 1 October 1989.

4.  On 11 July 1994, she complained of bilateral knee pain, low back pain, neck pain, and stomach/chest pain.  She subsequently underwent a thorough medical examination with referrals to the appropriate clinics.  Her narrative summary (NARSUM) shows she was diagnosed with mechanical neck pain with a myofascial syndrome component, coccydynia, bilateral patellofemoral pain syndrome without evidence of degenerative changes, and small reducible hiatal hernia without reflux.  The NARSUM shows her attending physician concluded she should be referred to a Medical Evaluation Board (MEB).

5.  On 15 July 1994, an MEB convened at Fort Riley, KS, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found that the applicant had the following medically unacceptable conditions: 

* mechanical neck pain with a myofascial syndrome component
* coccydynia
* bilateral patellofemoral pain syndrome without evidence of degenerative changes
* small reducible hiatal hernia without reflux

The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB).  The applicant agreed with the MEB’s findings and recommendation and indicated that she did not desire (emphasis added) to continue on active duty.

6.  On 18 August 1994, an informal PEB convened at Walter Reed Army Medical Center found her conditions prevented her from reasonably performing the duties required of her grade and specialty and determined she was physically unfit due to mechanical neck pain and coccydynia.  She was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), granted a 10% disability rating for codes 5003/5295 (mechanical pain) and 0% for codes 5299/5298 (coccydynia).  

7. The PEB also considered her other two conditions of bilateral patellofemoral pain syndrome without evidence of degenerative changes and small reducible hiatal hernia without reflux but did not find them unfitting and therefore not ratable.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.

8.  On 15 August 1994, the applicant was counseled by a PEB Liaison Officer regarding her medical conditions, the findings of the MEB, the PEB process, and her rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived her right to a formal hearing.

9.  She was honorably discharged on 14 October 1994.  Her DD Form 214 shows he was discharged in the rank/grade of SGT/E-5 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of physical disability.  This form also shows she completed 8 years, 11 months, and 11 days of creditable active service.  It further shows in:

* Item 12d (Total Prior Inactive Service) - "0000  00  00"
* Item 18 (Remarks) - Immediate Reenlistment 851104 - 890306 and 890307 - 941014"
* Item 26 (Separation Code) - "JFL"
* Item 27 (Reentry Code)  "RE-4"

10.  There is no indication in her records that she was promoted to SSG/E-6 prior to her discharge.
11.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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 office, grade, rank, or rating.  It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  

12.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item preparation instructions for the DD Form 214.  The instructions for item 12e states to enter the total amount of prior active military service as documented on previously issued DD Forms 214.  Additionally, DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in this block.  However, it is creditable service for completing the statutory mandatory service obligation, and will be entered in block 18 (Remarks).  

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the 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 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  Table 3-1 includes a list of the RA RE codes, and states:

* 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 last period of service with a nonwaivable disqualification

15.  Army Regulation 635-5-1 (Separation Program Designator Codes(SPD)) states that SPD codes are three-character alphabetic combinations which identify reasons for, and types of separation from active duty.  The "JFL" SPD code is used for involuntary separation and is the correct code for Soldiers separated under paragraph 4-24b(3) of Army Regulation 635-40 by reason of disability with entitlement to severance pay.

16.  The SPD/RE Code Cross Reference Table, dated October 1993, 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 SPD code of "JFL" has a corresponding RE code of "3."

17.  AR 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of enlisted personnel.  Paragraph 1-23 states the official instrument for promotion is the order. The promotion order will be used as the source for grade, effective date, and date of rank for all record and pay purposes.  Additionally, a promotion is effective as of the date on the promotion instrument.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her DD Form 214 contains errors that should be corrected. 

2.  The applicant was diagnosed as having various medical conditions that warranted her entry into the disability system.  She subsequently underwent an MEB which recommended that she be referred to a PEB.  She agreed with this recommendation and indicated she did not desire to continue on active duty.  The PEB determined she was physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay.  The applicant concurred.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case. 

3.  Her separation and RE codes were assigned based on the fact that she was discharged under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 due to her disabling medical conditions.  Absent the medical condition, there was no fundamental reason to process her through the PDES.  

	a.  Since the applicant was determined by the PEB that she could no longer reasonably perform the duties of her office, grade, rank, or rating, she was involuntarily discharged through the PDES process by reason of her physical limitations and she qualified for severance pay.  The only valid narrative reason for separation permitted under this paragraph is "physical disability with severance pay."

	b.  The SPD code of "JFL" 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 4-24B(3) by reason of physical disability with severance pay.  The SPD code entered on her DD Form 214 is consistent with the reason and authority for discharge.

	c.  Nevertheless, according to the SPD/RE cross reference table in effect at the time of her discharge, the "JFL" SPD code had a corresponding RE code of "3."  Therefore, she is entitled to correction of her DD Form 214 to show the correct RE code.

4.  With respect to her prior inactive service and DEP time:

	a.  She enlisted in the DEP on 19 July 1985 and she was discharged from the DEP 3 months and 16 days later on 3 November 1985 for the purpose of enlisting in the RA.  Prior to 1 January 1985, there was a requirement to enter periods of inactive service in item 12e of the DD Form 214.

	b.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and was no longer entered in item 12e.  However, it is creditable service for completing the statutory mandatory service obligation, and will be entered in block 18 (Remarks).  

	c.  The applicant did not complete any prior service; therefore, the entry in item 12e is correct.  Additionally, her DEP time began after 1 January 1985 and is correctly shown in item 18 of her DD Form 214.

5.  With respect to her arguments:

	a.  Her desire to reenter military service and serve her country is admirable; however, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Additionally, the ABCMR does not determine eligibility for enlistment.

	b.  She is advised that if she desires to reenter military service, she should contact a local recruiter who can best advise her on her eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant.

	c.  With respect to her alleged entitlement to unpaid pay and allowances as a SSG/E-6, irrespective of the Barring Act, a service member claiming additional pay and allowances previously accrued but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed.  The claim is disallowed where government records necessary to either justify or refute it have been destroyed or become unavailable due to lapse of time, and there is no other documentation available from any source to establish the liability of the United States.  She did not provide any evidence to support her entitlement to any pay or allowances.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X__  __X______  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 27 of her DD Form 214 the entry "4" and adding the entry "3."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to her:

* Prior Inactive Service
* Separation Code
* Delayed Entry Program



      _______ _ 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)                                         AR20110004494



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ABCMR Record of Proceedings (cont)                                         AR20110004494



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