MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 February 2002
	DOCKET NUMBER:   AR2001063891

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger Able		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:  In effect, that his reentry (RE) code of RE-3 be changed to RE-1.

APPLICANT STATES:  In effect, that he was involuntarily held beyond his original expiration of term of service (ETS) for a medical board.  He further states that on the date of his separation he had completed his full enlistment and should have received an appropriate RE code.  In support of his application, he submits the following documents: separation document (DD Form 214); enlistment contract (DA Form 4); discharge orders; Medical Evaluation Board (MEB) proceedings (DA Form 3947); and Physical Evaluation Board (PEB) proceedings (DA Form 199).  

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

On 16 January 1997, the applicant entered the Army for a period of 4 years and his ETS was established as 15 January 2001.  He successfully completed training and was awarded military occupational specialty (MOS) 92G (Food Service Specialist).  His record shows the highest rank he attained while serving on active duty was specialist /E-4 (SPC/E-4).  

On 21 December 1999, a MEB convened in Germany to evaluate the applicant’s medically diagnosed conditions of painful bilateral feet, chronic left knee pain, and moderate to severe obstructive sleep apnea and this resulted in the applicant being referred to a PEB.  

On 29 September 2000, a PEB convened in Washington D.C. to evaluate the applicant’s fitness for duty.  The PEB found the applicant physically unfit for duty and recommended a combined physical disability rating of 0 percent and that the applicant be separated by reason of physical disability with severance pay.  

On 17 October 2000, the applicant was advised of the findings and recommendations of the PEB and received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto.  He completed and signed a PEB election form concurring with the PEB findings and waiving his right to a formal hearing of his case.  

The specific facts and circumstances concerning the applicant’s retention beyond his ETS are not in the record; however, there is a properly constituted DD Form 214 on file that was issued to and authenticated by the applicant with his signature on the date of his separation, 27 January 2001.  This document confirms that the authority and reason for the applicant’s discharge was 
Army Regulation 635-40, paragraph 4-24b (3), and the narrative reason for his separation was disability with severance pay.  It also verifies that the applicant was assigned a separation program designator (SPD) code of JFL and a 
RE code of RE-3.
Army Regulation 635-200 prescribes the policy and procedure for the administrative separation of enlisted personnel.  Section IV provides guidance on the separation of soldiers after their ETS.  Paragraph 1-26 provides the policy and procedure for retaining soldiers beyond their ETS while undergoing physical disability processing.  It states, in pertinent part, that no soldier will be retained beyond their scheduled release date without their written consent.  It further indicates that if a soldier elects to be released as scheduled at his or her ETS, he or she will not be eligible for separation or retirement for physical disability. 

Army Regulation 635-5-1 (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 JFL 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(3), by reason of disability, severance pay.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents), establishes the RE code of RE-3 as the proper reentry code to assign to soldiers separated under this authority and for this reason.

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 Board notes the applicant’s contentions that he was involuntarily extended beyond his expiration term of service (ETS) and that on the date of his discharge he had completed his full term of his enlistment.  However, it finds these factors do not provide a basis for the requested relief.  

2.  The applicant’s record is void of the specific facts and circumstances concerning his retention beyond ETS in order to undergo physical disability processing.  However, the evidence of record does include a properly constituted DD Form 214 that confirms that the applicant was discharged under the provisions of paragraph 4-24b(3), Army Regulation 635-40, for physical disability with severance pay, and the Board presumes government regularity in his separation processing. 

3.  Procedurally, in order to retain soldiers beyond their ETS in order for them to undergo physical disability processing, they must consent to the action in writing. Although the applicant’s consent form is not on file, there is a copy of his signed PEB election form.  This document contains his written concurrence with the findings and recommendations of the PEB and his signature.  Therefore, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the PEB process, which includes his retention beyond ETS processing. 

4.  Further, the evidence of record confirms that the applicant was properly assigned the SPD code of JFL and the RE-3 code of RE-3 in accordance with the applicable regulations based on his being separated under the provisions of paragraph 4-24b(3), Army Regulation 635-40, by reason of physical disability with severance pay.  Therefore, the Board concludes that the RE-3 code assigned the applicant was and still is appropriate and that there is no evidentiary basis for changing it at this time.

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

___JH___  __KAK__  ___RA___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063891	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/05	
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.		
3.		
4.		
5.		
6.