BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20140019377 


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-4" to an RE code that will allow him to reenter military service.

2.  The applicant states, in effect, that he was involuntarily retired from active duty based on a permanent disability and granted a 30 percent (%) disability rating.  His separation was a result of having had surgery on his right foot, which has since healed without further complications.  He was unaware the RE code would preclude him from reentering military service and he wants to continue serving his country.

3.  The applicant provides a copy of 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 had prior honorable enlisted service in the Regular Army (RA) from 17 October 2000 through 25 August 2003.
  
3.  He enlisted and reentered the RA on 4 June 2008 for a period of 6 years and 2 weeks.  He was awarded military occupational specialty 92G (Food Service Operations).

   a.  He served in Afghanistan in support of Operation Enduring Freedom from 15 January through 6 October 2009.

   b.  He was promoted to sergeant (SGT)/E-5 on 26 July 2011.

4.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) show an informal PEB convened on 12 April 2011 to evaluate the applicant's medical conditions.

a. The following conditions were determined to be unfitting –

* right foot hallux valgus – 10%
* left foot hallux valgus – 10%
* right foot keloid scars – 10%

   b.  The PEB recommended permanent disability retirement with a combined rating of 30%.

   c.  The PEB President signed the PEB proceedings.

   d.  On 15 April 2011, the PEB Liaison Officer confirmed the applicant was fully briefed on the PEB’s findings and recommendations and concerning his legal rights pertaining thereto.

   e.  The applicant concurred, waived a formal hearing of his case, and placed his signature on the document.

   f.  The PEB proceedings were approved on 29 April 2011.

5.  U.S. Army Garrison - Hawaii, Schofield Barracks, HI, Orders 123-0019, dated 
3 May 2011, released the applicant from active duty on 26 July 2011 and placed him on the Retired List based on permanent disability with a rating of 30%.  He

was credited with 6 years and 2 days of total active service and 10 years, 
9 months, and 10 days of total service for pay.

6.  The applicant's DD Form 214 shows he was honorably retired from active duty on 26 July 2011 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1), based on permanent disability.  It also shows, in pertinent part, in –

* item 26 (Separation Code) "SFJ"
* item 27 (Reentry Code) "4"

7.  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 PEB 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 permanent disability with retirement.

8.  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 "SFJ" is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(1), based on separation for permanent disability with retirement.

   b.  The SPD/RE Code Cross Reference Table stipulates that an RE code of "4" will be assigned to members separated with an SPD code of "SFJ."

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA.  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
* RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification; ineligible for enlistment

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code should be changed because his right foot has since healed from surgery and he wants to continue serving his country.

2.  The evidence of record shows the applicant was found physically unfit for continued military service based on a combined disability rating of 30% that included, in pertinent part, right foot hallux valgus rated at 10% and right foot keloid scars rated at 10%.

3.  The applicant's retirement under the provisions of Army Regulation 635-40, paragraph 4-24b(1), based on permanent disability was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the narrative reason for separation and separation code were appropriate and correct.  Moreover, the
RE code of "4" establishing the applicant's ineligibility for enlistment was correctly entered on his DD Form 214 in accordance with the governing Army regulations.

4.  The applicant is commended for his desire to reenter military service to serve his country.  However, in view of the foregoing, there is an insufficient evidentiary basis for granting 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)                                         AR20140019377



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ABCMR Record of Proceedings (cont)                                         AR20140019377



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