IN THE CASE OF:	  

		BOARD DATE:	    8 November 2011

		DOCKET NUMBER:  AR20110009627 


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 change of his reentry eligibility (RE) code from RE-4 to RE-3.

2.  He states:

	a.  he has requested the change of his RE code in the past, but the Army Board for Correction of Military Records (ABCMR) replied stating there was no need for the change under Army Regulation 601-210 (Active and Reserve Components Enlistment Program), paragraph 5-51 (RA and Army Reserve Enlistment Program);

	b.  he has attempted to reenter the Army with the documentation provided by the ABCMR, but with no success;

	c.  the Military Entrance Processing Station (MEPS) refused his documentation and will not allow him to enlist unless his RE-4 code is changed; and

	d.  he has tried to reenter the service since 2006 and he has exhausted all administrative remedies available to him.

3.  He provides:

* a self-authored statement
* Orders D157-02, issued by the U.S. Army Physical Disability Agency (USAPDA), Walter Reed Army Medical Center (WRAMC), Washington, D.C., dated 5 June 2006

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 enlisted in the Regular Army (RA) on 16 July 2003 for a period of 4 years.  He completed training and he was awarded military occupational specialty 13F (fire support specialist)

3.  The complete facts and circumstance leading to his retirement as a result of temporary physical disability and placement on the Temporary Disability Retired List (TDRL) are not available for review.  However, his record contains a:

	a.  DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated
13 December 2004.  This form shows an MEB was convened to evaluate the applicant for "exertional asthma" that approximately originated in 2004 that was incurred while entitled to base pay and did not exist prior to service.  The board recommended that the applicant be referred to a physical evaluation board (PEB).  It was further determined the applicant did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  On 16 December 2004, the findings and recommendation of the board were approved.  On 27 December 2004, the applicant agreed with the MEB's findings and recommendation.

	b.  partial DA Form 199 (PEB Proceedings) that shows on 29 December 2004, the PEB found the applicant physically unfit and recommended a combined rating of 30 percent (%) and that the applicant be placed on the TDRL with reexamination during January 2006.  On 14 January 2005, the applicant concurred with the PEB's findings and recommendation and waived a formal hearing of his case.
4.  Orders 075-0001, issued by Headquarters, Fort Stewart, GA, dated 16 March 2005, retired the applicant by reason of physical disability effective 25 March 2005 and placement on the TDRL effective 26 March 2005.  The DD Form 214 he was issued at the time shows in:

	a.  item 9 (Command to Which Transferred) he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired), St. Louis, MO;

	b.  item 12c (Net Active Service This Period) he completed 1 year, 8 months, and 10 days of creditable active service;

	c.  item 25 (Separation Authority) he was retired under the provisions of Army Regulation 635-40, paragraph 4-24b(2);

	d.  item 26 (Separation Code) the entry "SFK";

	e.  item 27 (RE Code) the entry "4"; and

	f.  item 28 (Narrative Reason for Separation) the entry "Disability, Temporary."

5.  Orders D157-02, dated 5 June 2006, show the applicant was found fit for duty and therefore removed him from the TDRL, effective 12 July 2006.

6.  He provided a self-authored statement addressed to the Director of the ABCMR and to the Army Reserve Personnel Center (currently known as the U.S. Army Human Resources Command (USAHRC).  He stated, in effect:

	a.  the Army Review Boards Agency sent him documentation that has not helped him to reenter military service; 

	b.  he was discharged, placed on the TDRL, and he was set to return after
1 year;

	c.  the 1-year period had expired and he was unable to reenter the service due to conflicting issues on his DD Form 214;

	d.  he was physically evaluated at Winn Army Hospital, Fort Stewart, and at a MEPS facility in Montgomery, AL and he was cleared for reentry; and

	e.  he cannot reenter the Army unless his RE code is changed.

7.  On 12 December 2007, he applied to the ABCMR for correction of his RE code.  By letter, dated 26 February 2008, a staff member of the Board advised him that he had a 90-day period from 5 June to 5 September 2006 to make an election to enlist in the RA in accordance with Army Regulation 
601-210, paragraph 5-51.  He was also advised that if he failed to make an election within this 90-day period, he could still enlist provided he submitted a request for a medical waiver.

8.  Orders D-09-016069, issued by the USAHRC, Ft. Louis, MO, dated
14 September 2010, honorably discharged the applicant from the USAR, effective 14 September 2010.

9.  On 3 November 2011, the Deputy Chief of Staff (DCS), G-1 informed a staff member of the Board that in March 2011 when the applicant processed to enlist, a medical waiver was required and one was processed.  The medical waiver was disapproved.  All medical records from the TDRL were included in his enlistment packet and reviewed by the medical waiver authority prior to rendering a decision.  

10.  Army Regulation 601-210 governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the RA, the USAR, and the Army National Guard for enlistment.  Section XII of this regulation governs special processing for Soldiers removed from the TDRL.  It states that as a result of a periodic physical examination, a former Army enlisted member may be determined physically fit for return to duty.  If so, the member may be enlisted in the RA or USAR when his or her name has been properly removed from the TDRL and if all other requirements are met.  Enlistments within 90 days of removal from the TDRL will be made without regard to basic enlistment qualifications for prior service (PS) persons described in chapter 3 of this regulation.  Such persons will be enlisted in the permanent pay grade held on the day before the date their names were placed on the TDRL.  Former enlisted members who do not enlist in their respective component within 90 days of removal from the TDRL must meet all PS standards and qualifications at time of enlistment.

11.  Army Regulation 601-210, paragraph 5-53a, states medical waivers for RA and USAR enlistment may be considered for former enlisted members if:

	a.  Their physical condition has improved so that they meet retention criteria for active duty in Army Regulation 635-40.

	b.  Their names consequently have been removed from the TDRL.


12.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) 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 the SPD code SFK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(2) by reason of disability, temporary.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of SFK.

13.  Army Regulation 635-200 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 RA and the USAR.  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  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 for enlistment unless a waiver is granted.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions regarding his RE code are acknowledged.  However, the evidence of record does not indicate that an error or injustice exists in this case.

2.  The applicant’s temporary disability retirement was based on the fact that he underwent a PEB that found him physically unfit to perform the duties required of his grade and specialty and recommended placing him on the TDRL.

3.  At the time of his separation, he received a separation code of SFK and an RE-4 code.  The SPD of SFK 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(2).  Furthermore, such a discharge carries a reentry eligibility code of RE-4.  The SPD and RE codes entered on his DD Form 214 are consistent with the authority and reason for his discharge.
4.  The applicant’s RE code was assigned based on the fact that he was separated due to his physical disability.  The underlying reason for his discharge was his medical disability that resulted in his placement on the TDRL.  The only valid narrative reason for separation permitted under that paragraph is “Retirement” and the appropriate RE code associated with his discharge is RE-4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant subsequently underwent a reexamination that found him fit for duty; therefore, he was appropriately removed from the TDRL.

6.  The DCS G-1 stated MEPS did process a medical waiver, but it was denied.  In the absence of compelling evidence that would contradict that decision, it would be inappropriate for this Board to substitute its judgment for that of recruiting medical officials.  

7.  In view of the foregoing, there is no basis for granting the applicant’s requested relief.  

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)                                         AR20110009627



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ABCMR Record of Proceedings (cont)                                         AR20110009627



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