IN THE CASE OF:	  

		BOARD DATE:	  11 June 2015

		DOCKET NUMBER:  AR20140018611 


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 a change of the reentry eligibility (RE) code on his
DD Form 214 (Certificate of Release or Discharge from Active Duty) from "RE-3" to "RE-1."

2.  The applicant states he was involuntarily discharged based on a physical disability and he was granted a 10 percent (%) disability rating.

   a.  He states that he was qualified to reclassify into a non-combat arms military occupational specialty (MOS).  However, the Medical Evaluation Board informed him that the Army had no need for him because he could not take the three-event Army Physical Fitness Test.  He believes this decision showed arrogance and was based on a general dislike for non-infantry Soldiers.

   b.  His separation precluded him from serving his country during the Global War on Terrorism.  He was issued an RE code of "3" with a separation code of "JFL" when he was separated, which precludes him from reentering military service.

   c.  He states that he is 41 years old, in good physical condition, and he possesses full range of motion that is within the acceptable rating of not more than a 30% disability rating.  He adds that he does not have a criminal record.

3.  The applicant provides copies of two letters.


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 Army National Guard of the United States and California Army National Guard on 6 October 1992.  Upon completion of training he was awarded MOS 13E (Cannon Fire Direction Specialist).  He was honorably discharged on 17 January 1994 to enlist in the Regular Army (RA).

3.  A DD Form 214 shows he entered active duty in the RA on 18 January 1994, was honorably released from active duty on 17 February 1997 based on completion of required active service, and transferred to a U.S. Army Reserve (USAR) unit.

4.  The applicant enlisted and reentered the RA on 10 October 1997.  He then reenlisted on 16 November 1999.

5.  A review of the applicant's Official Military Personnel File failed to reveal copies of any documents relating to his Medical Evaluation Board/Physical Evaluation Board proceedings.

6.  U.S. Army Europe, Baumholder Transition Center, Orders 351-04, dated 
17 December 2001, discharged the applicant on 19 January 2002 with disability severance pay and a rating of 10%.

7.  The applicant's DD Form 214 shows he was honorably discharged on 
19 January 2002 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), based on separation for physical disability with severance pay.  He had completed 
4 years, 3 months, and 10 days of net active service this period; 3 years and 
1 month of total prior active service; and 7 months and 22 days of total prior inactive service.  It also shows, in pertinent part, in:

* item 18 (Remarks):  "Disability Severance Pay:  $29754.00"
* item 21 (Signature of Member Being Separated):  the applicant placed his signature on the document
* item 26 (Separation Code):  "JFL"  [unreadable; based on applicant's claim]
* item 27 (Reentry Code):  "3" [unreadable; based on applicant's claim]
* item 28 (Narrative Reason for Separation):  "Disability, Severance Pay"

8.  In support of his application the applicant provides the following documents.

   a.  Firm Foundations Healthcare Clinic, Liberty, Texas, letter, dated 3 January 2014, that shows B____ K. S____, Physician's Assistant – Certified, confirmed that he thoroughly examined the applicant on 23 December 2013 and found him fit for military service.

   b.  VA letter, dated 8 October 2014, that shows the applicant's claim was processed and his lumbar spine strain, rated at 10% disabling, was continued.  It also shows, in pertinent part, "Additional symptom(s) include:

* "Combined range of motion of the thoracolumbar spine within normal range"
* "Forward flexion of the thoracolumbar spine within normal range"

9.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures 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.  Chapter 4 (Procedures), paragraph 4-24 (Disposition by the U.S. Army Physical Disability Agency (USAPDA)), provides that the USAPDA will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the Physical Evaluation Board for clarification or reconsideration when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  It further shows, in pertinent part, based upon the final decision of USAPDA, orders or other disposition instructions will be issued based on separation for physical disability with severance pay.

10.  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. 

   a.  It shows the SPD code of "JFL" is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(3), based on separation for physical disability with severance pay.
   b.  The SPD/RE Code Cross Reference Table stipulates that an RE code of "3" will be assigned to members separated with an SPD code of "JFL."

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Table 3-1 includes a list of the RA
RE codes and shows that:

* RE-1 applies to Soldiers who are qualified for reentry or continuous service at time of separation, if all other applicable 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

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code should be changed because he was unfairly discharged without benefit of being reclassified into another MOS for which he was qualified due to arrogance and a dislike for non-infantry Soldiers.

2.  The applicant's contentions were considered.  However, he provides insufficient evidence to show that he was treated unfairly during his processing through the disability evaluation system or administrative separation process.  In addition, the fact that a civilian medical provider indicates that he found the applicant fit for military service is insufficient as a basis for authorizing the applicant reentry into the U.S. Armed Forces.

3.  The evidence of record shows the applicant was found physically unfit for continued military service based on a disability that was rated at 10%.  It also shows an RE code of "3" establishing the applicant's ineligibility for enlistment/ reenlistment without an approved waiver was correctly entered on his DD Form 214 in accordance with governing Army regulations.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  As a result, his processing through the disability evaluation system and separation based on a disability with severance pay are presumed proper and equitable.  Therefore, it is concluded that the reentry code that is shown on the applicant's DD Form 214 is appropriate and correct.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

6.  The applicant is advised that an RE code of "3" applies to persons who are not considered fully qualified for reentry or continuous service; however, it allows for a waiver of the disqualification.  Therefore, if he desires to reenter military service, he should contact a local recruiter who can advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers.

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)                                         AR20140018611



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ABCMR Record of Proceedings (cont)                                         AR20140018611



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