IN THE CASE OF:	  

		BOARD DATE:  31 May 2012

		DOCKET NUMBER:  AR20110020777 


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, in effect, correction of item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged due to non-medical reasons vice due to "Disability, Severance Pay." 

2.  He states he had his lungs tested and he passed the test.  He would like to reenter the Army and finish his career, but the narrative reason for separation shown on his DD Form 214 precludes him from reentering.

3.  The applicant provides three Pulmonary Function Laboratory Reports.

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 records show he enlisted in the Regular Army on 25 September 1996.  He held military occupational specialty 13F (Fire Support Specialist).

3.  The complete facts and circumstances leading to the applicant's discharge action are not available for review with this case.  However, his record contains Orders 338-0018 rendered by 5th Personnel Service Battalion, Fort Polk, LA, dated 4 December 1998, which reassigned him to the Transition Point for transition processing with a reporting date and date of discharge of 11 January 1999.  These orders also show he was authorized severance pay in pay grade
E-2 based on 2 years, 2 months, and 8 days of service and a 10 percent disability rating.

4.  His record also contains a DD Form 214 for the period ending 11 January 1999 which shows he was honorably discharged due to physical disability with severance pay in the amount of $4,303.20.  The form also contains the following entries:

* item 25 (Separation Authority) shows he was discharged under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)
* item 26 (Separation Code), "JFL"
* item 27 (Reentry Code), "3"
* item 28, "Disability, Severance Pay"

5.  The applicant provides three Pulmonary Function Laboratory Reports rendered on the dates shown and computerized interpretations indicated below:

* 26 June 1997, moderate restrictive disease
* 29 January 1998, mild restrictive disease
* 13 October 1998, spirometry within normal limits

6.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency (USAPDA), under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  Soldiers enter the PDES in one of four ways:  

	a.  Referred by a Medical Evaluation Board (MEB).  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a Physical Evaluation Board (PEB) to determine physical fitness under the policies and procedures of Army Regulation 635-40; 

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to a MEB/PEB is one of the actions the MMRB Convening Authority may direct; 

	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in an MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referred as a result of Headquarters, Department of the Army action.  The Commander, U.S. Army Human Resources Command, upon recommendation of the Surgeon General, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above.  U.S. Army Human Resources Command also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier to a different MOS.

7.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.  The PEB initially conducts an informal adjudication. 
This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the Physical Evaluation Board Liaison Officer for counseling of the Soldier.  If after counseling the Soldier concurs with the findings, the case is forwarded to the USAPDA to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE Codes.  An RE code of 1 applies to persons completing their term of active service who are considered fully qualified to reenter the U.S. Army.  An RE code of 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted.  

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The SPD code of "JFL" is the correct code for members separating under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 by reason of "Disability, Severance Pay."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation should be changed in order to make him eligible to reenter the Army.

2.  The evidence indicates the applicant was processed through the Army's PDES.  In the absence of evidence to the contrary it is presumed that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.  The evidence further shows that a PEB ultimately determined the applicant was unfit for service and he should be discharged with severance pay under the provisions of paragraph 4-24b(3) of Army Regulation 635-40.  The only valid narrative reason for separation permitted under this paragraph and its corresponding SPD code is "Disability, Severance Pay."  Absent his medical condition, there was no fundamental reason to process him for discharge.  Therefore, he received the appropriate narrative reason for separation.

3.  The available evidence shows the applicant accepted a total of $4,303.20 in disability severance pay.

4.  The applicant's desire to reenter the military is admirable; however the ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.  

5.  In view of the foregoing, the appropriate separation authority and narrative reason were annotated on the applicant's DD Form 214 at the time of discharge. His DD Form 214 was properly constituted and in the absent compelling evidence to the contrary there is no basis for granting the requested relief in this case.

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)                                         AR20110020777



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ABCMR Record of Proceedings (cont)                                         AR20110020777



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