BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120020718 


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, that her reentry (RE) code of 4 be changed to an RE code that will enable her to reenter the Army.

2.  The applicant states, in effect: 

   a.  She was issued orders assigning her to Fort Gordon, GA to complete her physical for the temporary disability retirement list (TDRL).  At that time she had just had a baby and she was under a doctor's care for a ruptured uterus.  She was not allowed to travel with her baby.  She was breast feeding, her husband was in Mexico and she had no one to leave her daughter with.  Therefore, she could not make the TDRL evaluation.

   b.  She was told if she did not report she would receive an Article 15.  The U.S. Army Reserve (USAR) Judge Advocate General officer assigned to assist her during her Medical Evaluation Board process was not any help.
   
   c.  She tried to appeal the decision; but she was not given another appeal date.  She was faxed some documents to sign that took her off the TDRL and placed her on permanent disability.  The applicant states she has been trying to resolve her reentry issues since last year.

	d.  She was under the assumption that she was still on the TDRL; she requested a copy of her DD Form 214 and when she got it she learned that she had been discharged.

   e.  She would like to reenlist; but she has received no assistance.

3.  The applicant provides no additional documentation in support of her 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.  On 7 February 1995, the applicant enlisted in the USAR for 8 years.  She held military occupational specialty (MOS) 68G (Patient Administration Specialist) and MOS 92F (Petroleum Supply Specialist).

3.  The applicant was ordered to active duty in support of Operation Iraqi Freedom on 9 June 2006.

4.  The applicant's records contain a Physical Evaluation Board (PEB) Proceedings that show a board convened on 23 July 2008 and found the applicant physically unfit due to Hereditary Peripheral Neuropathy (a disease or degenerative state of the peripheral nerves in which motor, sensory, or vasomotor nerve fibers may be affected and which is marked by muscle weakness and atrophy, pain, and numbness).

5.  The PEB assigned her a 70 percent disability rating.  Her medical and physical impairment prevented her from reasonably performing the duties required by her grade and MOS.  She was placed on the TDRL because her condition was not stable for final adjudication.  Based on the results of her periodic evaluations she could be found fit for duty, permanently retired, or separated from the service with severance pay.

6.  The PEB Proceedings also show the U.S. Army Physical Disability Agency (USAPDA) may request information from her concerning her medical treatment during her tenure on the TDRL.  Failure to report for a scheduled periodic examination or to inform the U.S. Army Human Resources Command of a change in address could result in suspension of retired pay.

7.  On 29 July 2008, the applicant concurred with the PEB findings and recommendation and waived a formal hearing of her case.  On 4 August 2008, the findings and recommendation were approved.

8.  On 4 October 2008, she was honorably retired by reason of temporary disability and placed on the TDRL on 5 October 2008, in the rank of sergeant/
E-5.  She had completed 2 years and 16 days of creditable active service.

9.  The applicant's DD Form 214 shows in:

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

10.  The applicant provides a Grady Health System, Imaging Result Report, dated 11 September 2009, which shows she was admitted for treatment.  She received a "CT" which suggested at least a partial uterine rupture, causing pelvic pain.  She was treated for her condition and released after 3 days of treatment.

11.  On 23 December 2009, the applicant did not concur with apparently a TDRL re-evaluation PEB findings and recommendation and demanded a formal hearing with a personal appearance.

12.  On 20 January 2010, the applicant concurred with apparently a TDRL           re-evaluation PEB findings and recommendation and waived a formal hearing.  On 20 January 2010, the findings and recommendation were approved.

13.  Orders Number D032-32, dated 25 January 2010, issued by the USAPDA, removed the applicant from the TDRL and permanently retired her due to physical disability with a 50% disability rating.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  It provides:

	a.  The TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  
Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.

	b.  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30% or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

15.  Paragraph 4-24b (2) authorizes the issuance of orders when the final disposition is placement on the TDRL (Title 10 U.S. Code 1203 or 1206).

16.  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 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 RE code "4" will be assigned to members separated under these provisions with an SPD code of "SFK."

17.  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 USAR.  Table 3-1 includes a list of the RA 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.

18.  Army Regulation 601-210 further states that individuals who have been permanently retired by reason of physical disability may not receive a waiver to reenlist.

19.  Army Regulation 635-40 (Physical Evaluation) states disability compensation is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her RE code of 4 should be changed to an RE code that will enable her to reenter the Army.  The evidence of record shows the applicant was released from her assignment and placed on the TDRL due to Hereditary Peripheral Neuropathy.  This mandated that she receive an RE code of 4 because she was being retired and placed on the TDRL.  On 25 January 2010, she was removed from the TDRL and permanently retired (not discharged) from the service with a 50 percent disability rating.

2.  Absent evidence of an error or injustice in the PDES process, there is insufficient evidence to show the applicant’s PEB disability rating is incorrect or that her permanent retirement was not in compliance with law and regulation.  Therefore, there is insufficient evidence to grant the requested relief.  She provides insufficient evidence to show she was not medically unfit for retention at the time she was placed on the TDRL or at the time she was permanently retired for disability.

3.  In the absence of evidence showing an error in the RE code she was assigned there is no basis for 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)                                         AR20120020718



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ABCMR Record of Proceedings (cont)                                         AR20120020718



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