IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110006599 


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 RE-4 to RE-3.

2.  The applicant states:

* he was retired too quickly and not given enough time to recover from his injuries
* he was placed on the Temporary Disability Retired List (TDRL) and 6 months later he went for his first evaluation at Fort Benning, Georgia
* 6 months after his evaluation he was medically retired
* he was not given the 5 years to recover like he was told he would be given with evaluations every 18 months to see if anything changed
* if he had been given 5 years to recover he would have already been reinstated on active duty

3.  The applicant provides:

* a statement addressed "To whom it may concern"
* Army Review Board Agency letter dated 7 December 2010
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Orders 339-0136
* Orders D306-21


CONSIDERATION OF EVIDENCE:

1.  With prior service (3 years, 7 months and 22 days of inactive and 6 months and 15 days active) the applicant reenlisted in the Regular Army on 29 November 2001.  He remained on active duty through reenlistments and an extension.

2.  The applicant's Medical Evaluation Board Proceedings are not on file.  His records do contain his Physical Evaluation Board (PEB) Proceedings which show the PEB was approved on 27 October 2008.  It found him to be medically unfit for retention in the Army due to post traumatic stress disorder requiring psychotropic medication and outpatient treatment, with a 50 percent disability rating, and traumatic brain injuries with post concussion headaches; status post improvised explosive devise blast exposure in Iraq, with a 10 percent disability rating.  The PEB recommended placement on the TDRL with a combined disability rating of 60 percent and reexamination during July 2009.

3.  Orders 339-0136 were published on 4 December 2008, releasing the applicant from his assignment effective 26 January 2009 and placing him on the TDRL, effective the following day.

4.  The applicant received a DD Form 214 showing he was retired on 26 January 2009, due to a temporary disability.  He received an RE code of 4 code and a SFK separation program designator (SPD) code.

5.  On 8 September 2009, a TDRL PEB found the applicant unfit for PTSD with a 50 percent disability rating and traumatic brain injuries with a 40 percent disability rating, for a combined rating of 70%.  The PEB found that his current condition was considered sufficiently stable for final adjudication.  It does not appear the applicant appealed the findings of this board.

6.  Orders D306-21 were published removing the applicant from the TDRL and permanently retiring him effective 2 November 2009, with a disability rating of 70 percent.

7.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the       DD Form 214 will be prepared to reflect an individual's service as it exists on the date of REFRAD, discharge, or retirement.

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states 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 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 code 4 applies to persons who have a non-waivable disqualification.

9.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD code to be used for these stated reasons.

10.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army Soldiers and Reserve Component Soldiers separated for disability, temporary.  SPD code SFK has a corresponding RE code of 4.

11.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  

12.  Army Regulation 635-40 also prescribes the function of the TDRL.  The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. 

13.  Title 10, U.S. Code, section 1210(h) provides that the disability pay of a member whose name is on the TDRL terminates upon the expiration of 5 years after the date when his or her name was placed on that list.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his RE code should be changed to a code that will allow him to reenter the military.  However, there is no error or injustice in his assigned RE code.

2.  His contentions and the documents he submitted have been considered.  However, his records show he was retired due to a temporary disability.  He was assigned an RE code of 4 and an SPD code of SFK based on his reason for discharge.
3.  Although he contends that his condition later changed, his DD Form 214 was properly prepared to show his service as it existed at the time of his retirement.

4.  Five years is the maximum time an individual may remain on the TDRL.  It is not a required time.  The applicant's TDRL PEB found that his current condition was considered sufficiently stable for final adjudication.  His traumatic brain injury condition had slightly worsened.  He provides no evidence to show his conditions have actually improved to the point where he could reenter active duty.

5.  As previously stated, an RE code of 4 applies to persons who are not considered qualified for reentry or continuous service.

6.  In view of the foregoing, his request should be denied.

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)                                         AR20110006599



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ABCMR Record of Proceedings (cont)                                         AR20110006599



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