IN THE CASE OF:  	Mr. 

      BOARD DATE:  	27 June 2014

      CASE NUMBER:  	AR20130017294
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests a change to the narrative reason for the discharge to include the reentry eligibility (RE) code.

2.  The applicant states, in effect, he was discharged with an alleged torn meniscus in his right knee; and upon a scope of his knee by the Jamaica Plains VA they found no such tear.  He desires to enlist in the Air National Guard.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		16 September 2013
b. Discharge received:			Honorable
c. Date of Discharge:			19 January 2009
d. Reason/Authority/SPD/RE:		Disability, Severance Pay (Non-Combat Related), AR						635-40, Chapter 4, paragraph 4-24b(3), JFO, RE-3
e. Unit of assignment:			HHC, 705th Military Police Battalion, Fort 							Leavenworth, KS 
f. Current Enlistment Date/Term:  	18 October 2007, 5 years
g. Current Enlistment Service:  	1 year, 3 months, 2 days
h. Total Service:			1 year, 3 months, 2 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	31B10, Military Police
m. GT Score:				103
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		AAM-3, NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 18 October 2007, for a period of 5 years.  He was 19 years old at the time and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 31B10, Military Police. His record also shows he had no combat service, but he earned an AAM-3; and he achieved the rank of PFC/E-3.  He was serving at Fort Leavenworth, KS, when his discharge was initiated.




SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence of record does not contain the Medical Evaluation Board (MEB) proceedings that diagnosed the applicant with a medical condition that made him unfit to perform his military duties and referred him to a Physical Evaluation Board (PEB) therefore, government regularity is presumed in the discharge process.  

2.  On 20 November 2008, the PEB determined the applicant was physically unfit to perform his military duties due to chronic right knee pain due to chondromalacia and patellofemoral syndrome that existed prior to enlistment and was not due to misconduct.  The PEB recommended separation with severance pay.  

3.  On 25 November 2008, having been informed of the findings and recommendations of the PEB, the applicant concurred and waived a formal hearing of his case.  

4.  On 2 December 2008, the PEB was approved for the Secretary of the Army.

5.  On 17 December 2008, DA, US Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS, Orders 352-0001, discharged the applicant from the Regular Army effective 19 January 2009.

6.  The applicant’s record does not contain any evidence of unauthorized absences, time lost, negative counseling statements or any actions under the Uniform Code of Military Justice (UCMJ).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The PEB proceedings dated, 20 November 2008 indicated the applicant had chronic right knee pain.

2.  Discharge orders number 352-001, dated 17 December 2008.

3.  A DD Form 214, dated 19 January 2009.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 149; DD Form 214; medical documents (six pages), and two character/support statements.

POST-SERVICE ACTIVITY: 

The applicant did not provide any post service accomplishments with his application.




REGULATORY AUTHORITY  

1.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  Chapter 4 provides for the separation of enlisted Soldiers found to be unfit by a Physical Evaluation Board (PEB) due to a condition which occurred in the line of duty and not due to the Soldier’s misconduct.  Paragraph 4-24b(3) provides that Soldiers not having sufficient time in service for retirement would be separated by reason of disability with severance pay.  

2.  The characterization of service for Soldiers separated under the provisions of Chapter 4, AR 635-40 will normally be honorable unless the Soldier is in an entry-level status.  The service of Soldiers in an entry-level status will be uncharacterized.  A Soldier is in an entry-level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.

3.  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.  It identifies the SPD code of "JFO" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-40, Chapter 4-24B(3), for disability, severance pay (non-combat related).

4.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JFO" will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for a change to the narrative reason to include the RE code was carefully considered.  However, after examining the applicant’s military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for the separation to include the RE code. 

2.  The proceedings of the PEB determined the applicant was physically unfit to perform his military duties due to a condition that occurred in the line of duty and was not due to misconduct.  The PEB recommended separation with severance pay.  The applicant agreed with these findings and the proposed action for administrative separation from the Army.  

3.  The analyst was satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected through the separation process.  

4.   The applicant requested a change to the narrative reason for separation to include the RE code.  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.  It identifies the SPD code of "JFO" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-40, Chapter 4-24B(3), for disability, severance pay.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JFO" will be assigned an RE Code of 3.

6.  The applicant contends he was discharged with an alleged torn meniscus in his right knee; and upon a scope of his knee by the Jamaica Plains Veterans Administration (VA) they found no such tear.  The independent medical documents the applicant submitted with his application are acknowledged which indicated he had three surgeries in his right knee.

7.  Further, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.

8.  The applicant desires to enlist in the Air National Guard.  Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There was no basis to grant a change to the reason or the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

9.  Therefore, the narrative reason for discharge to include the RE code being both proper and equitable, the analyst recommends the board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:  27 June 2014        Location: Washington, DC

Did the Applicant Testify?  No

Counsel:  None

Witnesses/Observers:  No

Board Vote:
Character Change:  NA	No Change:  NA
Reason Change:	0	No Change:  5
(Board member names available upon request)




Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	NA
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					NA



































Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130017294



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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