IN THE CASE OF:	  

		BOARD DATE:	 1 April 2014 

		DOCKET NUMBER:  AR20140001673 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 20 October 2004 to show all appropriate codes in the "Special Additional Information” section.  

2.  The applicant states the DD Form 214 he was issued is missing all the codes at the bottom of the form. 

3.  The applicant provides a DD Form 214 and an illegible DD Form 215 (Correction to DD Form 214).  

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.  Having had prior service, the applicant enlisted in the Regular Army on 30 December 1998 and he held military occupational specialty 31U (Signal Support Systems Specialist).  He reenlisted on 22 March 2001 and he attained the rank/grade of sergeant (SGT)/E-5 on or about 1 June 2001.

3.  On 24 June 2004, a formal physical evaluation board (PEB) considered his medical condition of chronic right groin pain following surgery for a hernia and determined he was medically unfit.  The PEB rated his condition at zero percent and recommended his separation with severance pay if otherwise qualified.  

4.  On 23 July 2004, Headquarters, U.S. Army Garrison, Military Personnel Division, published Orders 205-02020 ordering his discharge.  His discharge orders are not available for review with this case, but they were later amended. 

5.  He was discharged on 20 October 2004.  The bottom portion of the DD Form 214 he was issued, titled "Special Additional Information," is cut and/or is missing. It does not reflect the type of separation, characterization of service, separation authority, separation code, reentry code, narrative reason for separation, or dates of lost time. 

6.  Several attempts were made with the Transition Center at Fort Wainwright, AK; the Department of Veterans Affairs; the Army Archives; and the applicant himself to obtain a complete and legible copy of his DD Form 214 to no avail. 

7.  On 19 May 2011, the DOD Physical Disability Board of Review (PDBR) reviewed his case and recommended a modification to his disability rating from zero percent to 10 percent without re-characterization of his separation.  

8.  On 1 November 2011, Headquarters, U.S. Army Garrison, Military Personnel Division, published 305-0202, amending Orders 205-02020, dated 23 July 2004, to show a percentage of disability from zero percent to 10 percent. 

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  Paragraph 2-1 states a DD Form 214 will be prepared for Active Army Soldiers on termination of active duty service.

	a.  Item 23 (Type of Separation), enter the appropriate term, such as discharge, retirement, release from active duty, or other type as appropriate.

	b.  Item 24 (Characterization of Service), characterization or description of service is determined by directive authorizing separation.  The character of service must be one of these designations:  honorable, under honorable conditions, under other than honorable conditions, bad conduct, dishonorable, dismissed, or uncharacterized.

	c.  Item 25 (Separation Authority) is obtained from the regulatory directives authorizing the separation.

	d.  Item 26 (Separation Code) is obtained from Army Regulation 635-5-1 (Separation Code Designator).

	e.  Item 27 (Reentry Code) is obtained from Army Regulation 601-210 (Active and Reserve Components Enlistment Program) which determines reentry eligibility and provides regulatory guidance on reentry codes. 

	f.  Item 28 (Narrative Reason for Separation) is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635-5-1. 

	g.  Item 29 (Dates of Time Lost During This Period) is verified with the Defense Finance and Accounting Service.  For enlisted Soldiers, show inclusive periods of time lost to be made good under 10 USC 972, and periods of non-chargeable time after expiration of time of service. 

	h.  Item 30 (Member Requests Copy 4), if requested by the member. 

10.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES).  It 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.  Based upon the final decision of U.S. Army Physical Disability Agency (USAPDA), the USAPDA will issue retirement orders or other disposition instructions as appropriate.  Paragraph 4-24B(3) applies in the case separation for physical disability with severance pay (Title 10, U.S. Code, section 1203 or 1206).

11.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Reserve.  The regulation provides 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.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  Table 3-1 includes a list of the RA RE codes, and states:

* 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
* 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
* RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification

12.  Army Regulation 635-5-1 states that SPD codes are three-character alphabetic combinations which identify reasons for, and types of separation from active duty.  The "JFL" SPD code is used for involuntary separation and is the correct code for Soldiers separated under paragraph 4-24b(3) of Army Regulation 635-40 by reason of disability with entitlement to severance pay.

13.  The SPD/RE Code Cross Reference Table, dated October 1993, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "JFL" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

The applicant was discharged by reason of disability with entitlement to severance pay in October 2004.  For an unknown reason, no one has a complete DD Form 214 for him.  The absence of the bottom part of his DD Form 214 clearly impacts him negatively.  He should not be penalized.  He should be entitled to correction of his DD Form 214 to show he was honorably discharged, under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 by reason of disability with entitlement to severance pay and with the appropriate or corresponding separation and RE codes. 

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a DD Form 215 amending his 20 October 2004 DD Form 214 to show in:

* Item 23 - Discharge 
* Item 24 - Honorable
* Item 25 - AR 635-40, Para 4-24b(3)
* Item 26 - JFL
* Item 27 - 3
* Item 28 - Disability, Severance Pay
* Item 29 - None




      _______ _   __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)                                         AR20140001673





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ABCMR Record of Proceedings (cont)                                         AR20140001673



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