MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            30 AUGUST 2001
	DOCKET NUMBER:   AR2001057440

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Linda D. Simmons		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 his reentry (RE) code of “4” on his                    21 August 1992 DD Form 214 be changed to a “2” or a “3.”  

APPLICANT STATES:  He states that he was found fit and released from VA care in 1993, and he has been given an honorable discharge.  In a request for assistance from a Member of Congress the applicant stated that the reentry code was erroneous because he was given an honorable discharge on 2 August 1993 and found fit.  He stated that he was trying to join the Navy and the oversight was holding him back.      

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

The applicant enlisted in the Army for 3 years on 16 January 1986.  He was released from active duty on 11 January 1989 with an honorable characterization of service.  On 7 March 1989 he reenlisted in the Army for 4 years.  

A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that the applicant injured his left knee on 5 May 1991 while playing in a unit level football game.  That form also shows that he had a previous injury to his right elbow in 1988 that required surgery.  His injury was determined to be in line of duty.

On 1 May 1992 a Medical Evaluation Board (MEB) recommended that the applicant be referred to a Physical Evaluation Board (PEB) because of left elbow pain and status post anterior cruciate ligament reconstruction, left knee.

On 26 June 1992 a PEB found the applicant physically unfit and recommended a combined disability rating of 40 percent (30 percent for his left knee impairment and 10 percent for the degenerative joint disease to his left elbow).  The board recommended that the applicant be placed on the temporary disability retirement list (TDRL).  The applicant concurred.  The recommendation was approved for the Secretary of the Army.

The applicant was retired because of temporary physical disability on                21 August 1992.  He had over 6 years of active service and his character of service was honorable.  The applicant’s separation code on his DD Form 214 is shown as “SFK” and his reentry code as “4.”     

On 2 June 1993 the applicant underwent a yearly TDRL examination because of his left elbow arthritis and status post right anterior cruciate ligament reconstruction.  The examining physician diagnosed the applicant’s condition as status post right ACL reconstruction with fair return to function, and posttraumatic arthritis of the left elbow.  The applicant agreed with the findings and recommendations of the TDRL examination.   

On 7 July 1993 a PEB found the applicant physically unfit and recommended a disability rating of 20 percent (10 percent for his knee and 10 percent for his elbow); and recommended that the applicant be separated with severance pay.  The applicant concurred.  The recommendation was approved for the Secretary of the Army. 

On 2 August 1993 the applicant was removed from the TDRL and discharged from the Army with a 20 percent disability rating.  The applicant received an Honorable Discharge Certificate dated 2 August 1993.

A 21 November 1996 certificate indicates that the applicant had successfully completed the deputy sheriff training program in the city of St. Louis.

In a 22 November 1996 letter a circuit judge in Missouri stated that the applicant had been assigned to his division as a deputy sheriff and that the applicant was a professional, diligent, and competent individual, a reliable employee, with an uncanny ability to work with the public.   

On 19 October 2000 the applicant received a commendation for valor from the sheriff’s department in St. Louis for his actions on 14 October 2000 in engaging an armed felon.

On 3 February 2001 the applicant was awarded a certificate in recognition of      5 years of dedicated and committed service to the St. Louis city sheriff’s department.

Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed in a TDRL status for a maximum period of 5 years when it is determined that the individual is qualified for disability retirement under Title 10, United States Code, section 1201, but for the fact that his or her disability is not stable and the individual may recover and be fit for duty, or the degree of severity may increase or decrease so as to warrant a change in the disability rating.

A soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the soldier was temporarily retired.  A soldier will be removed from the TDRL and separated with severance pay if the soldier has less than 20 years of service and his disability has stabilized at less than     30 percent.   

Army Regulation 635-5 provides instructions for the preparation of the DD Form 214 to include the type of separation, e.g., retirement, discharge, etc., the character of service, the separation code and the reentry code.  That regulation specifies that Army Regulation 635-5-1 provides the authorities, reasons, and applicable separation codes.  That regulation shows that the separation code for a soldier placed on the TDRL is “SFK.”  The separation code/reentry code cross reference table contained in Army Regulation 635-5 shows a reentry code of “4” based on the “SFK” separation code. 

Army Regulation 601-210, then in effect, prescribes eligibility criteria governing enlistment of persons into the Regular Army and the Army Reserve.  Paragraph 3-8 of that regulation pertains to reentry codes and Table 3-6 lists the Armed Forces reentry codes.  RE-4 applies to persons separated from last period of service with a nonwaivable disqualification, and states that those persons are ineligible if disqualification is listed in table 4-2 or 4-3.  However, the applicant’s disqualification (medical) is listed in table 4-1, but that disqualification requires a waiver in order to enlist in the Army.  The current enlistment regulation also states that any person who was last separated or discharged from any component of the Armed Forces for medical reasons with or without disability will require a waiver.  

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.  The applicant’s reentry code on his DD Form 214 at the time of preparation was and is correct.  The fact that his medical condition had improved somewhat at the time he was discharged with severance pay in 1993, and the fact that his medical condition is now considerably improved, as the applicant implies, does not alter the fact that he was physically unfit for service with a 40 percent disability rating in 1992.    

2.  There are provisions to obtain a waiver of a medical condition in order to enlist in the Army, and it is presumed that the other services have similar provisions.  Should he desire to enlist in the Navy as he so states, the applicant would do well to contact a Navy recruiter concerning his present medical condition.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  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 that requirement.

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

__RVO __  __CJP __  __LDS__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001057440	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010830	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	100.03	
3.	4	
4.		
5.		
6.