BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110023029 


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 (RE) code from 3 to 1.

2.  The applicant states:

   a.  his RE-3 code should be upgraded due to lack of adherence to Army Regulation 40-501, Table 3-2, as it provides for profile progression recommendations for heat stroke;
   
   b.  he became ill after a 6 mile run where he was assigned straggler control duties that led to him carrying fellow rangers on his back followed by approximately two additional hours of intense physical training;
   
   c.  he was diagnosed with heat stroke on 26 June 2006 and as a result unable to deploy with his unit the following week;
   
   d.  while assigned to the rear detachment, the commander rushed him through the medical evaluation board (MEB) process not in accordance with Army Regulation 40-501; 
   
   e.  he was given zero recovery time in a four month period following his injury;
   
   f.  although the doctor's recommended he be reevaluated within 6 months to a year, he was medically discharged and assigned an RE code of 3;
   
   g.  his rank and lack of knowledge of the system resulted in his blind discharge from the Army he loved; and
   
   h.  within a year of his discharge, all residuals of his heat stroke faded to no follow on effects.

3.  The applicant provides three letters of support.

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 military records show that after having 8 months and 28 days prior service in the South Dakota Army National Guard, the applicant enlisted in the Regular Army on 20 September 2005.  He was trained in and served in military occupational specialty 11B (Infantryman).

3.  The applicant's OMPF is void of the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged under the provisions of Army Regulation 635-40 (Standards of Medical Fitness), paragraph 4-24B(3), by reason of "Disability, Severance Pay."

4.  The applicant's DD Form 214 also confirms he was discharged on 14 November 2006 after completing 1 year, 1 month, and 25 days of creditable active military service.  Item 26 (Separation Code) contains the entry "JFL" and item 7 (Reentry Code) contains the entry "3." 

5.  The applicant provides 3 character references from the following individuals:

   a.  Department of Veterans Affairs (VA), Physician Assistant, statement dated 31 August 2011 - He states the applicant is followed at the VA Medical Center , has no physical emotional complaints, physical exam, lab tests, and kidney function were normal, he had no headaches or residuals effects from the heat stroke he experienced 6 years ago, he did not appear to have any heat intolerance, and he felt the applicant was physically and mentally stable to return to active duty.
   
	b.  Pheasant's Fury Aviation, Operation Manager, statement dated 16 September 2011 - He indicates the applicant has been employed with Pheasant's Fury Aviation for the past 2 years and able to perform his duties without any limitations as a result of heat or otherwise.  The applicant's duties requires refueling aircraft of all types on a black tarmac ten hours a day, while wearing protective clothing and coordinating aircraft parking through radio calls and hand signals.

   c.  Former Soldier's statement dated 9 September 2011 - He indicates the applicant showed a high level of fitness and displayed many tangible qualities that made him a valuable asset as a Soldier.  He also states that allowing him to reach his full potential as a Soldier would be a great service to our country.

6.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 4-24b(3) of this regulation provides for the separation of a member for physical disability with severance pay when the final decision is directed by the United States Army Physical Disability Agency (USAPDA).

7.  Pertinent Army regulations provide 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.  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.  RE-3 applies to members who are considered not fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.

8.  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, in pertinent part, that the SPD code of JFL is the appropriate code to assign to Soldiers separated under the provisions of paragraph 4-24b(3), Army Regulation 635-40, by reason of physical disability with severance pay.  The SPD/RE Code Cross Reference Table in effect at the time established RE-3 as the appropriate code to assign members separated under these provisions, this RE code assignment remains in effect under the current regulation.

9.  Army Regulation 40-501, paragraph 3-45 states Soldiers will be referred to an MEB after an episode of heat stroke or exertional rhabdomyolysis.  If the soldier
has had full clinical recovery, and particularly if a circumstantial contributing factor to the episode can be identified, the MEB may recommend a trial of duty with a P–3 (T) profile. The profile will restrict the soldier from performing
vigorous physical exercise for periods longer than 15 minutes. Maximal efforts, such as the APFT 2-mile run are not permitted. If, after 3 months, the soldier has not manifested any heat intolerance, the profile may be modified to P–2 (T) and normal unrestricted work permitted. Maximal exertion and significant heat exposure (such as wearing Mission Oriented Protective Posture (MOPP) IV) are still restricted. If the soldier manifests no heat intolerance, including a season of significant environmental heat stress, normal activities can be resumed and the soldier may be returned to duty without a PEB. Any evidence of significant heat intolerance, either during the period of the profile or subsequently, requires a referral to a PEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code should be changed from a 3 to 1 to adhere to Army Regulation 40-51.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  This document confirms the applicant was discharged under the provisions of paragraph 4-24B(3), Army Regulation 635-40, by reason of "disability, severance pay."  By regulation, RE-3 is the proper code to assign to members separated under these provisions of the regulation.  As such, his assigned RE-3 code at the time of his discharge was and still is appropriate based on the authority and reason for his separation.

3.  The applicant is advised that although no further change to his RE code is recommended, this does not mean he is being denied reenlistment.  While RE-3 does apply to persons who are not considered fully qualified for reentry or continuous service, there are provisions that provide for a waiver of the disqualification.  If he desires to reenlist, he should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process 
RE code waivers.
4.  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)                                         AR20110023029





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ABCMR Record of Proceedings (cont)                                         AR20110023029



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