MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 October 1998 
	DOCKET NUMBER:   AC98-09557

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

	The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Robert W. Garrett		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the Reentry (RE) Code on his report of separation (DD Form 214) be changed to a more favorable code that will allow him to enlist in the Army National Guard.

APPLICANT STATES:  That he would like his DD Form 214 corrected to show that he is no longer in the Temporary Disability Retired List (TDRL) and that he is eligible to enlist in the Army.  He further states that he has since been removed from the TDRL and would like to enlist in the National Guard.  He also states that he would like his DD Form 214 to reflect his current status because he can’t enlist in the National Guard unless his RE code is changed. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted on 26 October 1992 for a period of 3 years and training as a combat engineer.  He was transferred to Fort Leonard Wood, Missouri to undergo his training.

While in basic training he was struck in the head during pugil training on 5 December 1992 and began to experience severe headaches, dizziness, nausea with occasional nemesis, frequent bouts of blurred vision, and difficulty sleeping.  He was diagnosed with post-concussive syndrome and it was determined that he did not meet retention standards.  

He was referred to a Physical Evaluation Board (PEB) on 26 August 1993 which determined that he was not fit for retention on active duty and recommended that he be separated from the service by reason of physical disability with a disability rating of 10 percent.  The findings and recommendations were approved on 30 August 1993.

The applicant submitted an appeal of the PEB findings and recommendations on 3 September 1993 and requested that he be placed on the TDRL instead of being discharged.  The disability separation of the applicant from the service was rescinded on 22 September 1993 and the applicant was granted a formal hearing with a personal appearance before another PEB on 23 November 1993.

On 2 March 1994 a PEB found that the applicant’s impairments warranted a disability rating of 30 percent and recommended that he be placed on the TDRL for a short period of time due to recent changes in his therapy.

Accordingly, he was placed on the TDRL on 7 April 1994 in accordance with Army Regulation 635-40, by reason of temporary physical disability.  He had served 1 year, 5 months, and 7 days of total active service and was issued an RE Code of RE-4. 
On 13 December 1994 after having undergone a thorough medical examination, the applicant was notified by the PEB that it had been determined that he was fit for duty and that he should be removed from the TDRL.  He was advised by Certified Mail on 28 December 1994 of his right to appeal the decision and was informed that he had he 10 days in which to make an election.  Furthermore, should he elect to do so, he had 90 days in which to enlist in the Regular Army or USAR.  He was also informed that failure to make an election within 10 days of receipt would result in his forfeiting his right to election and his case would be forwarded to the appropriate authority for proper disposition.

The applicant failed to make an elections in this matter within the prescribed timeframe.  By virtue of the applicant having not responded, the applicant was considered to have waived his right of election under the provisions of Army Regulation 635-40.  Accordingly, he was removed from the TDRL effective 10 July 1995.

The applicant eventually returned his election statement indicating that he elected to enlist in the Regular Army within 90 days of removal from the TDRL.  It is dated the date of his removal from the TDRL (10 July 1995).

Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It states, in pertinent part, that a DD Form 214 will be prepared at the time an individual is placed on the TDRL with the appropriate narrative reason for separation and RE Code appropriate at the time.  A DD Form 214 will not be issued when an individual is removed from the TDRL.

Army Regulation 635-40 governs the physical evaluation for retention, retirement, or separation of military personnel in the Army.  It states, in pertinent part, that personnel who are pending removal from the TDRL and who fail to make an election to appeal or to enlist within 90 days of notification, forfeit their right to do so. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s DD Form 214 was properly prepared at the time he was placed on the TDRL to reflect the circumstances as they existed at that time and he was issued the proper RE Code for those circumstances. 

3.  Likewise, the applicant was properly afforded the opportunity at the time he was removed from the TDRL to enlist in the Regular Army or a Reserve Component if he chose to do.  The applicant failed to exercise his option at the time and still did not do so until 7 months after the fact.  However, by that time he had been properly removed from the TDRL and his option to enlist was no longer available. 

4.  The Board finds that the actions by the Department were in accordance with applicable regulations in effect at the time and that there are no indications of any violations of the applicant’s rights.  The failure of the applicant to exercise his rights at the time does not constitute an error or injustice on the part of the Department. 

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__EW___  __RWG _  __JS____  DENY APPLICATION

						Loren G. Harrell
						Director