IN THE CASE OF:	 

		BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140018178


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, an upgrade of his reentry (RE) code.

2.  The applicant states, in effect, that he was removed from the temporary disability retired list (TDRL) in 2011 after his final review and he was given a      10 percent (%) disability rating.  He would like to reenter the Army as an officer, but he has an RE code of "4."  

3.  The applicant provides no other evidence in support of his application.  

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 enlisted in the Regular Army on 23 November 2005.  He completed training and was awarded military occupational specialty (MOS) 94E (Radio and Communications Security Repairer).  

3.  On 22 May 2009, an informal Physical Evaluation Board (PEB) convened in Washington, DC, and found him physically unfit for further service due to a limitation of flexion of his left thigh with chronic non-surgical left hip pain unresponsive to treatment.  The PEB rated him 40 percent (%) disabled and recommended placement on the TDRL with reexamination in November 2010.  He concurred with the PEB's findings and recommendation and waived his right to a formal hearing of his case.

4.  On 25 August 2009, he was honorably retired from the Army and placed on the TDRL in his retired list rank/grade of sergeant/E-5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b (2), by reason of temporary disability.  He completed 3 years, 9 months, and 3 days of net active service.  Block 26 (Separation Code) shows the entry "SFK" and block 27 (Reentry Code) shows the entry "4."

5.  On 12 July 2011, a PEB convened in Washington, DC and found his condition had improved, but not to the extent to be considered fit for duty.  The PEB rated his condition as 10% disabling and recommended that he be separated with severance pay.  He concurred with the findings and recommendation and waived his right to a formal hearing. 

6.  On 13 July 2011, the U.S. Army Physical Disability Agency, Washington, DC, published Orders D194-02, which administratively removed him from the TDRL effective 13 July 2011 and discharged him from service because of permanent physical disability rated 10% disabling with severance pay.   

7.  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 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

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations, which identify reasons for and types of separation from active duty.  The SPD code of "SFK" is the correct code for Soldiers separating under Army Regulation 635-40,
paragraph 4-24b (2), for temporary disability.

9.  The SPD/RE Code Cross Reference Table 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 table in effect at the time of his discharge shows the SPD code of "SFK" has a corresponding RE code of "4."

10.  Army Regulation 635-5 (Separation Documents), in effect at the time, establishes standardized policy for preparing and distribution the DD Form 214.  Chapter 2 states, in pertinent part, that a DD Form 214 will not be prepared for Soldiers being removed from the TDRL.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his RE code was carefully considered.  

2.  The applicant’s retirement was based on the fact that he underwent a PEB that found him physically unfit to perform the duties in his grade and specialty and recommended his placement on the TDRL.  At the time of his retirement and placement on the TDRL, he received a separation code of "SFK" and an RE code of "4."  

3.  The SPD code 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 discharge carries an RE code of "4."  The SPD and RE codes entered on his DD Form 214 are consistent with the reason and authority for his discharge.

4.  His RE code was assigned based on the fact that he was retired due to physical disability.  The underlying reason for his discharge was his medical disability that resulted in his separation.  The only valid type of separation permitted under that paragraph is "Retirement" and the appropriate reason of temporary disability.  The RE code associated with this type and reason for separation is "4," which is correctly shown on his DD Form 214.

5.  His desire to reenter military service and serve his country is admirable; however, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100022411



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ABCMR Record of Proceedings (cont)                                         AR20140018178



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