IN THE CASE OF:	   

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140006326 


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:

* amendment of the reentry (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty), from "3" to "3P"
* referral to the Physical Disability Evaluation System (PDES) and an evaluation by a Medical Evaluation Board (MEB)

2.  The applicant states he was medically discharged and denied the chance to go before an MEB because he had reached his end of active service.

3.  The applicant provides his 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.  The applicant's records show he enlisted in the West Virginia Army National Guard (WVARNG) on 7 April 1999.  He entered active duty for training (ADT) on 12 May 1999 and completed required training for award of military occupational specialty (MOS) 19D (Cavalry Scout).  He was released from ADT on 10 September 1999. 

3.  He was advanced to specialist (SPC)/E-4 on 4 June 2001.  He also entered active duty in support of Operation Noble Eagle on 5 may 2002 and he was honorably released from active duty on 16 September 2002. 

4.  He was honorably released from the WVARNG on 6 October 2002, by reason of completion of his ARNG service, and he was transferred to the U.S. Army Reserve Control Group (Reinforcement).  His NGB Form 22 listed his rank/grade as SPC/E-4. 

5.  He enlisted in the Regular Army (RA) in the rank/grade of SPC/E-4 on 9 January 2003.  He served in Iraq from January 2003 to August 2004.

6.  He also reenlisted in the RA on 8 February 2005 (for 6 years) and again served in Iraq from March 2005 to March 2006 and March 2008 to March 2009.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 April 2006.  

7.  On 18 July 2007, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for multiple instances of failure to report and multiple instances of disrespect.  His punishment consisted of a reduction to SPC/E-4, a forfeiture of pay, and extra duty and restriction. 

8.  On 10 December 2009, Headquarters, III Corps, Fort Hood, TX, published Orders 344-0150, ordering his discharge effective 7 February 2010.  These orders show he was eligible to receive full separation pay in accordance with Department of Defense Instruction (DoDI) 2332.29 (i.e. 1332.29) and Title 10, U.S. Code (USC), section 1174.

9.  On 7 February 2010, he was honorably discharged from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, at the completion of his required period of active service.

10.  His DD Form 214 and corresponding DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) he was issued show:

* he completed a total of 7 years, 9 months, and 10 days of active service,  3 years and 21 days of inactive service and no lost time
* he completed 3 tours in Iraq
* he received $21,791.10 in separation pay
* he was entitled to full involuntary separation pay
* his was assigned Separation Code "JBK” and RE Code "3" 

11.  The record is void of information related to any medical conditions that may have made him unfit for further military service.

12  Army Regulation 635-200 provides policy and procedures for separation of enlisted personnel.  Chapter 1, section V addresses the effective date of discharge, stating a discharge is effective at 2400 hours on the date of release.  Chapter 4 states, subject to chapter 1, section V, Soldiers will normally be discharged or released from active duty on completion of the period for which enlisted. 

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides a list of separation codes.  It shows the narrative reason for “JBK” as completion of required active service.

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) defines RE Code "3" as being assigned to a person who is not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  The Army does not use the RE Code "3P" requested by the applicant.  Rather, this code is used by the Navy for persons separated with disqualifications for retention.  Enlistment for persons with an RE Code "3P" code can only enlist with a waiver.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

16.  Army Regulation 40-501 provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a PEB.  Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40.  In paragraph 3-4 it states it is critical that MEBs are complete and reflect all of the Soldier's medical problems and physical limitations.  The PEB will make the determination of fitness or unfitness.

17.  DoDI 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay) implements policy as given in Title 10 USC, section 1174, for determining eligibility for separation pay.  It defines full separation pay (non-disability) as pay authorized for members of the Regular Army who have been involuntarily separated from active duty when they meet the following criteria:

	a.  The Soldier has completed at least 6 years, but fewer than 20 years, of active service.

	b.  Service characterization must be honorable.

	c.  The Soldier is being denied continued military service because:

* is fully qualified for retention, but is denied reenlistment or continuation on active duty; this includes those Soldiers eligible for promotion, but denied reenlistment under established promotion or high year of tenure policies
* is fully qualified for retention and is being involuntarily separated under a reduction in force by authority of the Secretary of the Army
* Soldier accepts an earlier separation due to being denied reenlistment or continuation on active duty	

	d.  The Soldier has entered into a written agreement with the Army to serve in the Ready Reserve for a period of not less than 3 years following separation from active duty.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the RE Code: 

	a.  The RE Code requested by the applicant is a code that is reserved for the Navy, and essentially is the Navy's version of the code currently shown on the applicant's DD Form 214.  The Army does not use RE Code 3P. 

	b.  The available evidence shows the applicant reenlisted for 6 years on 8 February 2005; this established the expiration of his term of service as February 2011.  It appears due to his Article 15 and resultant reduction to E-4, he was no longer eligible to reenlist.  It also appears he accepted an earlier separation due to being denied reenlistment and also executed an agreement to serve in the Ready Reserve, which explains his entitlement to separation pay. 

	c.  Since it appears he was ineligible to reenlist, he could not have been assigned RE-1.  Therefore, in the absence of evidence to the contrary, it appears the RE Code assigned on his DD Form 214 is correct and he provides no evidence to show it is in error.
2.  With respect to the medical separation: 

	a.  The applicant's records do not reflect and he does not provide any evidence of a permanent physical profile that rendered him unfit, a diagnosis of a disabling condition that failed retention standards, or any reason that would have warranted his entry into the PDES.  

	b.  A key element of the Army disability system is the Soldier's condition at the time of separation.  It is not intended to be a prediction of future medical ailments.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Referral to an MEB is warranted if there is a medical diagnosis of a disabling condition.  There is none here.  Based upon the foregoing, no basis exists to grant 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)                                         AR20140006326





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140006326



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1