BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140004735 


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, corrections of his Separation Program Designator (SPD) and reentry (RE) codes.

2.  He states his RE code of "4" is unjust because he can still perform his duties as a Soldier.  He never wanted to leave the service.  He was sent to a Warrior Transition Unit without notice and then put through a Medical Evaluation Board (MEB).  He is now trying to reenter the military and his RE code is preventing him from doing so.  He wants to be a Soldier again; he can still pass a Physical Fitness test and physical examination.

3.  He provides his discharge orders, Separation Counseling Checklist, and DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 he enlisted in the Regular Army (RA) on 26 May 2006 and he was awarded military occupational specialty 11B (Infantryman).

3.  On 11 February 2010, a Physical Evaluation Board (PEB) at Fort Lewis, Washington, considered the applicant’s case.  The PEB rated the applicant's "chronic left testicular/groin pain" at 10 percent (%) under Department of Veterans Affairs (VA) disability codes 7525 and 7804.

4.  The PEB found the applicant’s medical condition prevented him from performing the duties of his grade and specialty and recommended separation with severance pay based on a 10% disability rating.

5.  On 16 February 2010, he concurred with the PEB findings.  He also waived his right to a formal hearing.

6.  On 20 May 2010, he was discharged after completing 3 years, 11 months, and 25 days of creditable active military service.

7.  The DD Form 214 issued to the applicant confirms he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with severance pay, non-combat (enhanced).  Item 26 (Separation Code) contains the entry “JEB” and item 27 (Reentry Code) contains the entry "4."

8.  The U.S. Army Human Resources Command Message Number (#) 132138Z June 2008 implemented new SPD codes for the disability-related provisions of the National Defense Authorization Act of 2008 and Disability Evaluation System (DES) Pilot Program.  It shows the SPD code of “JEB” was implemented to replace the SPD code of “JEL” and that it was assigned to those Soldiers who were discharged under the provisions of Army Regulation 635-40, chapter 4, by reason of disability with severance pay, non-combat (enhanced).

9.  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.  Table 2-3 of this regulation identifies the SPD code of "JEB" as the code to assign to members separating by reason of “disability, severance pay, non-combat related” under the provisions of chapter 4, paragraph 4-24, Army Regulation 635-40.  This table shows that "3" is the associated RE code for the SPD code "JEB."  An RE code of 3 applies to persons who have a waivable disqualification.

10.  Army Regulation 601-210 (Active or Reserve Component Enlistment Program) states in chapter 4 that 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 contends his RE code of "4" should be corrected to allow him to reenlist in the military because he is physically capable of performing his duties and passing a physical examination.

2.  By regulation, the DD Form 214 is a summary of a Soldier's most recent period of continuous active service.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. While the applicant's medical condition may have improved since his discharge from the Army, there are no regulatory provisions that allow for changing or altering the DD Form 214 to document events that occur subsequent to a discharge action.

3.  With the implementation of new policy guidance, the SPD code of "JEB" is the proper code to assign members discharged by reason of disability with severance pay, non-combat (enhanced) under the provisions of Army Regulation 635-40, chapter 4.  Thus, item 26 of the applicant’s DD Form 214 correctly lists the proper SPD code based on the reason and authority for his discharge action.

4.  By regulation, an RE code of "3" is the proper code to assign members separated under these provisions of the regulation.  As such, his assigned RE code of "4" is incorrect.  It would be appropriate to correct item 27 of his DD Form 214 to show the entry "3."

5.  The applicant is advised that an RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of the disqualification.  Therefore, if he desires to reenlist, the applicant should contact a local recruiter to determine his eligibility for a waiver.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of RE codes.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X______  _X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the current entry in item 27 of his DD Form 214 and replacing it with the entry "3."

2.  The Board further determined that 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 correction of his SPD.



      _______ _   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)                                         AR20140004735



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ABCMR Record of Proceedings (cont)                                         AR20140004735



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