IN THE CASE OF:	

		BOARD DATE:	       23 October 2012

		DOCKET NUMBER:  AR20120005772 


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 a change in his 10 percent (%) disability rating to 0% in order to reenlist.  

2.  The applicant states the Department of Veterans Affairs (VA) had denied service connection for his bipolar disorder because they found he was just very intoxicated.  Simply put, he was drunk on one weekend and got labeled bipolar.  

3.  The applicant provides a VA rating decision cover page in support of his request.

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 record shows the applicant served in the Regular Army (RA) for 4 years, 11 months, and 28 days from 15 November 1988 through 12 November 1993, at which time he was honorably released from active duty (REFRAD), in the grade of sergeant (SGT)/E-5, by reason of completion of required active service.  

3.  On 20 March 2003, the applicant enlisted in the U.S. Army Reserve (USAR) for 2 years in the grade of private first class (PFC)/E-3.  

4.  On 16 September 2004, the applicant was ordered to active duty in support of Operation Enduring Freedom.  He served for 1 year, 9 months, and 7 days until being honorably retired, by reason of temporary disability on 14 July 2006, and placed on the Temporary Disability Retired List (TDRL) on 15 July 2006.  

5.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 14 July 2006 shows he was separated under the provisions of paragraph 4-24B (2), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability temporary.  It further shows that based on the authority and reason for separation, he was assigned a Separation Program Designator (SPD) code of SPK.  

6.  On 19 February 2010, while on the TDRL, a Physical Evaluation Board (PEB) reevaluated the applicant.  It determined the applicant was physically unfit for further service based on being diagnosed with bipolar disorder.  He was assigned a disability rating of 10% under VA Schedule for Rating Disabilities (VASRD) code 9432.  The PEB recommended the applicant’s separation with severance pay.  

7.  On 25 February 2010, the applicant was removed from the TDRL and separated by reason of permanent disability with severance pay.   

8.  The applicant provides a cover sheet from a VA rating decision, dated 10 July 2010, which indicates service connection for a bipolar disorder was denied.  He fails to provide the remaining portion of the rating decision that contains the explanation for the denial of service connection. 

9.  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.  It also provides the policies for disposition of Soldiers who are found unfit because of a physical disability.  Paragraph 4-24B (2) provides disposition guidance on members placed on the TDRL and paragraph 4-24b (3) provides guidance for members separated for physical disability with severance pay.  

10.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214.  Table 2-3 provides SPD codes applicable to enlisted personnel.  It identifies the SPD code JFL for assignment to members separated by reason of disability, with severance pay; and the SPD code SFX for assignment to members separated by reason of disability, temporary.  

11.  The SPD/Reentry (RE) Code Cross Reference Table provides for assignment of an RE code of 4 to members separated with a SPD code of SFX; and an RE code of 3 to members separated with a SPD code of JFL.  

12.  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 "4" applies to persons with a non-waivable disqualification and an RE code "3" applies to persons who have a waivable disqualification.  Chapter 4 states recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are responsible for processing waivers.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change his disability rating to 0% so he can reenlist has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was initially separated from active duty under the provisions of paragraph 4-22b(2), Army Regulation 635-40, by reason of disability, temporary, and that he was placed on the TDRL.  It further shows that based on the authority and reason for his separation he was properly assigned an SPD code of SFX and should have been given an RE code of 4.  It further shows that on 25 February 2010 he was removed from the TDRL and separated by reason of permanent disability with severance pay under the provisions of paragraph 4-22b(3), Army Regulation 635-40.  By regulation, the SPD code of JFL and RE code of 3 would be the code to assign members who are separated by reason of disability with severance pay.

3.  The applicant provides a VA rating decision cover sheet that indicates he was denied service connection for his bipolar disorder.  However, he fails to provide any VA medical information explaining the basis for the VA’s denial of service connection for this condition.  Therefore, absent any medical evidence that calls into question the validity of the rating decision of the PEB at the time of the applicant’s placement on the TDRL, or at the time of his separation with severance pay, based upon a diagnosis made by competent military medical authorities, there is an insufficient evidentiary basis to support a change to the applicant’s disability rating.  

4.  However, the applicant is advised, now that he is no longer medically retired, that his disqualification from reenlistment based on the medical condition as it was rated at the time of his separation with severance pay may be waivable.  Therefore, if he desires to reenlist he should contact local recruiting officials who are responsible for processing RE code waivers.  

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)                                         AR20120005772



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ABCMR Record of Proceedings (cont)                                         AR20120005772



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