IN THE CASE OF:	  

		BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110020108 


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 reconsideration of the Board's denial of his previous request for a change of his reentry (RE) code of 4R to an RE code that would enable him to reenter the Army.

2.  He states he was placed on and taken off the Temporary Disability Retired List (TDRL) and discharged for permanent disability with severance pay with a 20 percent disability rating.  He believes he has made a full physical recovery and is capable of completing any and all requirements for reenlistment.  He asked that the Board notice he did not have a bar to reenlistment.

3.  He provides letters of medical clearance from a podiatrist and the Mercer County Department of Veterans Affairs (VA). 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100024892, on 26 April 2011.

2.  The letters of medical clearance from a podiatrist and the Mercer County VA provided by the applicant are new evidence, which requires that the Board reconsider his request.


3.  He enlisted in the Regular Army on 18 July 2007.  While undergoing basic training at Fort Leonard Wood, on 29 August 2007, he accidentally shot himself in the left foot while trying to clear his weapon.

4.  He entered the Army Physical Disability Evaluation System (PDES).  He was found physically unfit with a 30 percent disability rating.  On 30 January 2008, he was honorably retired by reason of temporary disability and he was placed on the TDRL on 31 January 2008.  He had completed 6 months and 13 days of creditable active service.

5.  His DD Form 214 shows in:

* Item 23 (Type of Separation) the entry "RETIREMENT"
* Item 24 (Character of Service) the entry "HONORABLE"
* Item 25 (Separation Authority) the entry "AR [Army Regulation] 635-40, PARA [Paragraph] 4-24B(2)
* Item 26 (Separation Code) the entry "SFK"
* Item 27 (Reentry Code) the entry "4R"
* Item 28 (Narrative Reason for Separation) the entry "DISABILITY, TEMPORARY"

6.  On 2 April 2010, he was removed from the TDRL by U.S. Army Physical Disability Evaluation Agency orders and discharged from the service because of permanent physical disability with severance pay.  He was assigned a disability rating of 20 percent.

7.  He provided a document, dated 12 August 2011, indicating he had an x-ray, on 21 July 2011, which showed the possibility of a hypertrophic non-union of the second metatarsal left foot.  The document indicated he:

* had no pain and no difficulty with range of motion
* was requesting to be able to return to active duty in the military and indicated he may do so
* was able to function without restrictions and without disability from this condition

8.  He provided a letter from a medical doctor indicating he had been examined on 12 September 2011.  The doctor stated the applicant reported he had a gunshot wound to the left foot, metatarsal area on 27 August 2007.  He had no pain in the area.  Upon examination the 2nd toe had a slightly shortened length, but otherwise his foot examination was unremarkable.  The applicant indicated he was running five miles three times per week with no pain and had done marches with 75 pound packs with no foot pain or problems with his left foot.  He was taking no medications for pain and had no restriction on his activities.

9.  Army Regulation 635-5-1 (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 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."

10.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative) states 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 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army 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 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.

	d.  RE-4R applies to Soldiers who retired for length of service with 15 or more years of active Federal service.  They are ineligible for enlistment.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The
DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It states a DD Form 214 will not be prepared for a Soldier removed from the TDRL.

12.  Army Regulation 601-210, section XII, 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 Regular Army or U.S. Army Reserve when his or her name has been properly removed from the TDRL and if requirements of this section are met.

	a.  Paragraph 5-52 states former enlisted members who do not enlist in their respective component within 90 days of removal from the TDRL must meet all prior service standards and qualifications at time of enlistment.

	b.  Paragraph 5-53 states medical waivers for Regular Army and U.S. Army Reserve enlistment may be considered for former enlisted members if their physical condition improved so that they meet retention criteria for active duty in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	c.  Requests for medical waivers will be sent will be sent to the approving authority (see paragraph 5-42).  Include with waiver requests:

		(1) DD Form 2808 and DD Form 2807-1;

		(2) Copy of the physical evaluation board proceedings and exhibits that caused the member's removal from the TDRL;

		(3) Reports of subsequent and current treatment; and

		(4) Reports of x-ray, orthopedic, surgical, medical, or other consultations.  

DISCUSSION AND CONCLUSIONS:

1.  When the applicant was removed from active duty by reason of temporary physical disability and placed on the TDRL, he received a DD Form 214.  That DD Form 214 correctly reflected his separation authority, a SPD code, and an RE code that deemed him ineligible to reenter military service.

2.  When a TDRL physical re-examination found his condition had stabilized, the applicant's disability rating was changed from 30 percent to 20 percent.  He was determined to be permanently disabled with entitlement to severance pay.  This no longer permitted him to remain on the TDRL; therefore, he was removed from the TDRL and discharged accordingly.

3.  He contends he has made a full recovery and is capable of completing all requirements for reenlistment.  The results of medical examinations completed in 2011 indicate his 2nd toe had a slightly shortened length, he had no pain and no difficulty with range of motion, and he was able to function without restrictions and without disability from this condition.  However, the fact that civilian doctors indicated he was able to return to active duty 3 years after the applicant's discharge does not show the Army's diagnosis was an error.  As such, there is no evidence of an error in assignment of his reason for separation.

4.  It is noted the applicant’s DD 214 shows his RE code as 4R (i.e. retirement for length of service).  By Army Regulation 635-5-1 and the SPD/RE Code Cross Reference Table, he should have been assigned an RE code of 4 based on his separation authority, SPD code, and narrative reason for separation.  As such, it would be appropriate to correct the RE code on his DD Form 214 to show RE code 4.

5.  Although his RE code should have been RE code 4 based upon his temporary disability retirement, there are regulatory provisions that will allow him to apply for a waiver to enlist.  The applicant should make his recruiting officials aware of the provisions of Army Regulation 601-210, section XII, as outlined above.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20100024892, dated 26 April 2011.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the entry in item 27 (Reentry Code) of his DD Form 214 to "4."

2.  The Board further determined 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 changing item 27 to an RE code that 


would enable him to reenter the Army without first obtaining a medical waiver in accordance with Army Regulation 601-210.




      _______ _   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)                                         AR20110020108



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ABCMR Record of Proceedings (cont)                                         AR20110020108



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