PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            20 January 2000
	DOCKET NUMBER:    AR1999028422

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

	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Gary F. Geraets		Member	
	Ms. Barbara J. Ellis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, that his reentry (RE) code be changed.

3.  The applicant states, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) is wrong in that it states that he is retired from the Army, when in fact he is not receiving any type of compensation from the military. Also his DD Form 214 states that he was retired for a temporary disability and he has since recovered.  He indicates that the reason he has waited to try and correct this error is that he recently talked to a recruiter, because he wishes to reenter the service, and discovered the errors.

4.  The applicant’s military records show that he entered the Regular Army for the period of service under review on 28 November 1989, and served continuously until his honorable separation, in the rank of corporal/E-4, on 17 December 1993. 

5.  On 8 November 1993, the Physical Evaluation Board (PEB) published proceedings pertaining to the applicant which found that he was physically unfit for duty and recommended that he be placed on the temporary disability retired list (TDRL) and that his disability be rated at 30%.  The applicant concurred with the findings and recommendations of the PEB.  

6.  Accordingly, on 17 December 1993 he was separated from active duty by reason of temporary disability, and he was concurrently placed on the TDRL.  The DD Form 214 issued to the applicant at separation contained a separation program designator (SPD) code of SFK in block 26 and assigned him a RE code of 4R in block 27.

7.  On 19 April 1995, the PEB published a additional proceedings pertaining to the applicant and found that he was still physically unfit, but recommended a change in the applicant’s disability rating to 10%; in addition, to a change in his status from TDRL to separation with severance pay.  The applicant concurred with these findings. 

8.  On 12 May 1995, Orders Number D91-4, issued by the Disability Branch of the Army’s Personnel Command (PERSCOM), removed the applicant from the TDRL and concurrently discharged him from the Army, effective 12 May 1995, because of permanent physical disability and the applicant was authorized to receive severance pay.

9.  AR 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.  The SPD code of SFK was the appropriate code for the applicant based on the guidance provided in this regulation for soldiers separating under the provisions of paragraph 4-24b (2), Army Regulation 635-40, by reason of TDRL.  

10.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper reentry code to assign to soldiers separated for this reason.  RE 4R applies only to soldiers who retire for length of service with 15 or more years of service.

11.  The guidance contained in these same regulations for soldiers separated by reason of disability-severance pay, under the provisions of Paragraph 4-24b (3), Army Regulation 635-40, establishes an SPD code of JFL and an RE code of 3.

12.  Army Regulation 635-40, paragraph 4-24b (2) provides for the final disposition by PERSCOM after final adjudication by the PEB which results in a TDRL determination.  Paragraph 7-2 provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. 

13.  Paragraph 7-11, Army Regulation 635-40 contains guidance on the action to be taken following periodic PEB evaluations or on the fifth anniversary and indicates that PERSCOM will remove a soldier from the TDRL on the fifth anniversary of the date the soldier's name was placed on the list, or sooner on the approved recommendation of a PEB.  It states, in pertinent part, that if a soldier is determined to be unfit for duty and they have less than 20 years of service they will be removed from the TDRL and separated with severance pay if the soldier has less than 20 years of service and the disability has stabilized at less than 30 percent.  A former Regular Army enlisted soldier who would be separated under this authority may request a waiver to reenlist. 

CONCLUSIONS:

1.  The RE code of 4R contained on the DD Form 214 issued the applicant was incorrect and applies only to members retired for length of service after serving 15 or more years.

2.  The applicant was initially placed on the TDRL which called for an RE code of 4.  However, his reenlistment status changed when he was removed from the TDRL and discharged by reason of disability-severance pay, effective 12 May 1995, which calls for an RE code of 3.  Therefore, the Board concluded it would be appropriate to change the applicant’s RE code to 3 at this time.

3.  Although this status change would not automatically result in a change to the applicant’s DD Form 214 because is took place after he left active duty, the Board found in the interest of clarity that a correction to the DD Form 214 be issued the applicant with a new RE code of 3 and a remark explaining his status change from TDRL to discharged.  

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated with an 
RE code of 3.  

2.  That a DD Form 215 be issued to the individual concerned which corrects his RE code and contains a remark in block 18 that indicates that he was removed from the TDRL and discharged, by reason of disability severance pay, effective 12 May 1995.  

BOARD VOTE:  

___be___  __rgh ___  __gg____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Robert G. Hinkle_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999028042	
SUFFIX		
RECON		
DATE BOARDED	2000/01/20	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1993/12/17	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	TDRL	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  4	100.0300	
2.		
3.		
4.		
5.		
6.