IN THE CASE OF:	  

		BOARD DATE:	: 10 November 2011

		DOCKET NUMBER:  AR20110010085 


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 an upgrade of his reentry eligibility (RE) code in order to reenter the Army.

2.  He states his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was given an RE-4 after being on the Temporary Disability Retired List (TDRL) for 1 year.  The medical examiners thought he had Post-Traumatic Stress Disorder (PTSD), but later concluded he did not.  He was diagnosed with only slight social impairment.

3.  He adds that he was in a bad marriage at the time and it negatively impacted his entire life.  He is now older, wiser, happily married, and desires to reenter the Army.

4.  He provides:

* An extract of his military medical record
* A memorandum from the U.S. Army Physical Evaluation Board (PEB), Fort Sam Houston, TX, subject:  Letter of Instruction, Informal PEB Proceedings (TDRL), dated 22 May 2009
* An incomplete DA Form 199 (PEB Proceedings), convened on 22 May 2009


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 29 June 2002.  He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  Neither the medical evaluation board (MEB) proceedings nor the circumstances leading up to his previously-diagnosed medical condition of PTSD are in the available record.

4.  However, the extract of his military medical record shows he was treated as an outpatient for chronic PTSD, a partner relational problem, depression, systemic hypertension, anxiety disorder, and hyperlipidemia between 10 March 2006 and 19 July 2007.

5.  The available record shows that on 21 December 2007, a PEB indicated the following:

	a.  Anxiety disorder, onset January 2005 following a tour in Afghanistan which included symptoms of sleep disturbance, anger, irritability and depression;

	b.  Soldier unfit for further military service due to risk of decompensation in combat and stressful situations;

	c.  Soldier reported to be performing poorly in unit and requires close supervision;

	d.  His impairment was rated at a disability level of 30 percent (%) or more, but were such that a permanent evaluation was not possible; and


	e.  he was placed on the TDRL as a result.

6.  On 29 February 2008, he was honorably retired and placed on the TDRL under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2).  His narrative reason for separation was "disability, temporary."  His DD Form 214 shows he completed 5 years, 9 months, and 8 days of creditable active service.  This form also shows in:

* Item 26 (Separation Code) the entry "SFK"
* Item 27 (RE Code) the entry "4"

7.  The applicant provided a memorandum, subject:  Letter of Instruction, Informal PEB Proceedings (TDRL), dated 22 May 2009.  This document shows the PEB reviewed his most recent medical examination and file and recommended his removal from the TDRL.  He was advised to refer to the PEB proceedings, dated 22 May 2009.

8.  His record contains a copy of the final PEB proceedings that convened on
22 May 2009.  Item 13 (Election of Soldier) shows he concurred with the findings and recommendations of the PEB and he waived his right to a formal hearing of his case.   This document also states the following:

	a.  Per the TDRL psychiatric evaluation, dated 6 May 2009, the constellation of his current symptoms did not meet the criteria for PTSD despite the opinion of the Department of Veterans Affairs (VA) examiner;

	b.  he required intermittent medication but he does not require counseling and he had not been psychiatrically hospitalized while on the TDRL;

	c.  he had satisfactory social adjustments and satisfactory civilian occupational and educational adjustment;

	d.  his condition was not compatible with military service due to the risk of decompensation and he continued to fail military retention standards; 

	e.  the psychiatrist recommended retention on the TDRL, but he did not meet the criteria for retention; and 

	f.  he was rated at 10% because of his occupational and social impairment due to mild or transient symptoms. 


9.  Orders D156-31, issued by the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C., dated 5 June 2009, show he was removed from the TDRL on 5 June 2009 and discharged from the Army effective the same date because of permanent physical disability with 10% disability and entitlement to severance pay.

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) 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.  Section XII governs special processing for Soldiers removed from the TDRL.  It states that as the 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 U.S. Army Reserve (USAR) when his or her name has been properly removed from the TDRL and if requirements of this section are met.

11.  The same regulation states that 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 the time of enlistment.

12.  Army Regulation 601-210, chapter 3, includes a list of Armed Forces RE codes, including RA RE codes and covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR and prescribes basic eligibility for prior service applicants for enlistment.

	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-2 use was discontinued on 28 February 1995.

	c.  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.

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


13.  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 4-24(b)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.

DISCUSSION AND CONCLUSIONS:

1.  His contention that his RE code should be upgraded to allow him to reenter military service based on the 2009 PEB proceedings which indicate he does not have PTSD was carefully considered.  However, there is insufficient evidence to support this claim.  The available evidence shows he was found unfit for having an anxiety disorder, not PTSD.

2.  The applicant's record confirms he was properly assigned an SPD code of SFK and an RE-4 code based on the authority and reason for his discharge.  Absent any evidence of error or injustice in the separation process, which includes the SPD and RE code assignments, the assigned RE code of 4 was and remains valid.

3.  His record contains a signed copy of the 2009 PEB and other documentation which shows that after a review of his most recent periodic medical examination he was still determined to be unfit for military service and as a result his name was removed from the TDRL and he was discharged for physical disability, rated 10% disabled.

4.  Regulatory guidance clearly states that after being removed from the TDRL as a result of being found fit for duty, the applicant may apply for a waiver to enlist.  Army Regulation 601-210 also states that 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.  However, the applicant was not found fit for duty by a PEB.  As such, this does not apply to him.

5.  Absent any evidence of error or injustice in the PEB process, there is an insufficient evidentiary basis to support granting the 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)                                         AR20110010085



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ABCMR Record of Proceedings (cont)                                         AR20110010085



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