BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130018439 


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 his previous request that his Reentry Eligibility (RE) code be changed from RE-4 to RE-1 due to his honorable discharge.  As a new issue, he requests reinstatement in a retirement status with benefits.

2.  He states:

	a.  he was diagnosed with asthma while he was deployed to Iraq in 2005.  He had no history of asthma, but he was quickly sent home to the United States.

	b.  he was quickly placed on the Temporary Disability Retired List (TDRL) once he was back home and was forced to become a civilian.  He intended to serve 20 years and retire from the service.  

	c.  he was asked if he wanted to go back in the Army after his examination in 2007 because he was fit for duty.  At this point in his life, the Army was not a good fit for him due to work and his physical shape.

	d.  he asked if he could reenter the Army at a later date and he was told "Yes."  

	e.  he received a letter removing him from the TDRL in April [2007] and discharging him from the service.

	f.  he felt it was a good time for him to re-enlist into the Army in 2009.  After working with the recruiter and getting a waiver, he was denied the opportunity to re-enlist.  

	g.  he feels that if he was fit for duty in 2007 then he should have been fit for duty in 2009.  

	h.  his military status needs to be changed back to retired because he was removed from the TDRL and told he was fit for duty, but he was not allowed to re-enlist because of his medical condition.  He feels this is an injustice.  Since he was not allowed to re-enlist then he should be placed back on retirement status.  

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 August 2005
* Honorable Discharge Certificate, dated 5 April 2007
* Memorandum, Subject:  Transmittal of Separation Documents, dated 5 April 2007
* Orders D096-07, dated 5 April 2007, removing him from the TDRL
* Orders 199-0212, dated 18 July 2005, releasing him from active duty and assigning him to the TDRL

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 AR20090009395 on 19 November 2009.

2.  The applicant enlisted in the Regular Army (RA) on 15 February 1996.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 25Q (Multichannel Transmission Systems Operator).  

3.  He was released from active duty on 28 March 2001 and was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was credited with 5 years, 1 month, and 14 days of active military service.

4.  He enlisted in the RA again on 31 January 2002.  

5.  He was promoted to rank and pay grade staff sergeant (SSG)/E-6 on 1 October 2002.
6.  He served in Iraq from 4 April 2003 to 15 March 2004 and from 10 January 2005 to 3 February 2005.

7.  His Medical Evaluation Board Proceedings are not available.  On 23 June 2005, a Physical Evaluation Board (PEB) convened and considered the applicant's disability of asthma.  The PEB found that his medical and physical impairment prevented reasonable performance of duties required by his grade and MOS.  The PEB found that this disability existed prior to service and was not permanently aggravated by service, but is compensable in accordance with Title 10, U.S. Code, section 1207a.  Childhood asthma, mild symptoms after entry, symptoms increased after deployment to Kuwait.  

8.  The PEB recommended a combined rating of 30 percent (%) and placed him on the TDRL because his condition was not sufficiently stable for final adjudication.  On 28 June 2005, he concurred with the findings and recommendations of the PEB.

9.  He was honorably retired on 25 August 2005, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24(b)2, for temporary disability.  He was credited with 3 years, 6 months, and 25 days of net active service.

10.  He was issued a DD Form 214 that shows in Item 26 (Separation Code) the entry "SFK" and Item 27 (RE Code) shows the entry "4."

11.  On 14 March 2007, a second PEB convened and considered the applicant's disability of asthma.  The PEB found that he remained unfit to reasonably perform his duties and his condition was considered sufficiently stable for final adjudication.  The PEB found the applicant physically unfit and recommended a combined rating of 10% and separation with severance pay.

12.  On 26 March 2007, the applicant did not concur with the findings and recommendations of the PEB and indicated that he was submitting a written appeal.  There is no evidence that a written appeal was submitted.

13.  Orders D096-7, dated 5 April 2007, issued by the U.S. Army Physical Disability Agency removed him from the TDRL and discharged him from the service effective 5 April 2007 due to a permanent physical disability rated at 10% disabling with severance pay.  He was also issued an Honorable Discharge Certificate, dated 5 April 2007.


14.  Army Regulation 635-40 sets forth the basic authority for the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  Paragraph 4-24b(2) provides that Soldiers placed on the TDRL will be issued retirement orders or other disposition instructions.  Paragraph 7-11(2) specifies that a Soldier will be removed from the TDRL and separated with severance pay when the disability has stabilized at less than 30 percent.  A Soldier who would be separated under this authority may request a waiver to re-enlist.   

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the RA, the U.S. Army Reserve (USAR), and the Army National Guard for enlistment.  Section XII of this regulation governs special processing for Soldiers removed from the TDRL.  It states that as a 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 RA or USAR when his or her name has been properly removed from the TDRL and if all other requirements are met.  Enlistments within 90 days of removal from the TDRL will be made without regard to basic enlistment qualifications for prior service (PS) persons described in chapter 3 of this regulation.  Such persons will be enlisted in the permanent pay grade held on the day before the date their names were placed on the TDRL.  Former enlisted members who do not enlist in their respective component within 90 days of removal from the TDRL must meet all PS standards and qualifications at time of enlistment.

16.  Army Regulation 601-210, paragraph 5-53a, states medical waivers for RA and USAR enlistment may be considered for former enlisted members if:

	a.  Their physical condition has improved so that they meet the retention criteria for active duty in Army Regulation 635-40.

	b.  Their names consequently have been removed from the TDRL.

17.  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 that 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.

18.  Army Regulation 635-200 states 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.  Table 3-1 included 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 for enlistment 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding his RE code and reinstatement in a retirement status with benefits are acknowledged.  However, the evidence of record does not indicate that an error or injustice exists in this case.

2.  The applicant states he was diagnosed with asthma while he was deployed to Iraq in 2005.  He contends he had no history of asthma, but he was quickly sent home to the United States.  However, the PEB proceedings indicate he had childhood asthma with mild symptoms after entry into military service and his symptoms increased after deployment.

3.  The applicant’s temporary disability retirement was based on the fact that he underwent a PEB that found him physically unfit to perform the duties required of his grade and specialty and recommended placing him on the TDRL.

4.  The applicant subsequently underwent a reexamination that found him unfit for duty, but with a disability rating of less than 30%; therefore, he was appropriately removed from the TDRL due to disability with severance pay.  

5.  The applicant contends that he was asked if he wanted to go back in the Army after his examination in 2007 because he was fit for duty, but at that point in his life, the Army was not a good fit for him.  However, the evidence of record shows he was determined unfit for duty in 2007.  As a result, he was removed from the TDRL and was discharged due to a permanent physical disability with a 10% disability rating with severance pay.  
6.  The applicant states he felt it was good time to re-enlist into the Army in 2009.  He worked with the recruiter, got a waiver, but he was denied the opportunity to re-enlist.  He contends that if he was fit for duty in 2007 then he should have been fit for duty in 2009.  However, he was found unfit for duty in 2007 and was discharged from the service with severance pay.  

7.  The governing regulation directs that enlistments within 90 days of removal from the TDRL will be made without regard to basic enlistment qualifications for PS persons when the member has been found to be physically fit.  However, since the applicant was found unfit in 2007, he was not eligible to enlist within 90 days of removal from the TDRL because he did not meet all PS standards and qualifications for enlistment.  

8.  At the time of his separation on 25 August 2005, he received a separation code of SFK and an RE-4 code.  The SPD of SFK was the appropriate code for the applicant based on the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-40, paragraph 4-24b(2).  Furthermore, such a separation carries a reentry eligibility code of 
RE-4.  The SPD and RE codes entered on his DD Form 214 are consistent with the authority and reason for his separation.

9.  The applicant’s RE code was assigned based on the fact that he was separated due to his physical disability.  The underlying reason for his discharge was his medical disability that resulted in his placement on the TDRL.  The only valid narrative reason for separation permitted under that paragraph is "Retirement" and the appropriate RE code associated with his discharge is RE-4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

10.  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:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR20090009395, dated 19 November 2009.

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 reinstating him on the Retired List.




      _______ _   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)                                         AR20130018439





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ABCMR Record of Proceedings (cont)                                         AR20130018439



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