ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 November 2019 DOCKET NUMBER: AR20170012724 APPLICANT REQUESTS: * to change the Reentry (RE) Code in Item 27 (Reentry Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) thereby allowing him eligibility to return to military service * request a Board appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect: a. He was given a RE-Code of 4 for an inoperable injury. He states, since retirement, the injury has been fully rehabilitated without extensive surgical intervention. b. He adds, being able to perform the functions of a Service member, he should have a RE Code that would allow him eligibility for reenlistment. 3. A review of the applicant’s service record shows: a. He was honorably discharged from the U.S. Air Force after 10 months and 11 days of active service on 18 October 2005. He enlisted in the Regular Army for 3 years and 14 week on 13 February 2008. b. Orders 228-7197, dated 15 August 2008, deployed the applicant overseas in support of Operation Iraqi Freedom on 15 September 2008. c. On 25 October 2010, the applicant extended his enlistment to 22 September 2012. d. Orders WW-060-2850, dated 1 March 2011, deployed the applicant overseas in support of Operation Enduring Freedom on 28 April 2011. e. DA Form 199 (Physical Evaluation Board (PEB) Proceedings), convened on 26 April 2012, provides: (1) Item 8b (Disability Description), shows the applicant has a health condition that was determined to be unfitting and incompatible with military service as an 19D with a recommended 30% disability percentage. (2) Item 9, shows the PEB found the applicant to be physically unfit and recommended, in part, that he be permanently retired. (3) Item 13 (Election of Soldier), shows the applicant acknowledged that he had been advised of the findings and recommendations of the PEB and received full explanation of the results of the findings and recommendations and legal rights pertaining thereto; he concurred and waived a formal hearing of his case on 2 May 2012. f. Orders 144-0207, dated 23 May 2012, issued by Headquarters, U.S. Army Garrison, Fort Wainwright, AK, released the applicant from assignment and duty because of physical disability on 14 June 2012 and placed him on the retirement list, effective 29 July 2012. g. His DD Form 214 shows the applicant was retired honorably on 29 July 2012, under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 4, due to permanent disability (enhanced). He served 4 years, 5 months, and 17 days of active service this period with no lost time. His DD Form 214 also shows, in part in Item 27, the applicant was given a RE Code of “4”. 4. The applicant’s application packet and service record were void of new information to support he has been fully rehabilitated from the injury which resulted in his disability retirement. 5. By regulation, (AR 15-185 (ABCMR)) applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. By regulation (AR 635-40), the military treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier’s condition becomes questionable in respect to physical ability to perform duty. Unit commanders will ensure that any physical defects impacting on a Soldier’s performance of duty are reflected in the Soldier’s evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. It also states that the MTF commander having primary medical care responsibility will conduct an evaluation of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a medical evaluation board (MEB). The MEB will recommend referral to a physical evaluation board (PEB) those Soldiers who do not meet retention standards. 7. By regulation (AR 635-5-1) Personnel Separations - Separation Program Designator Codes), Soldiers separated under the provisions of AR 635-40, Chapter 4, disability, permanent (enhanced), are assigned SPD Code “SEJ”, the RE Code associated with this SPD Code is “4.” 8. By regulation (AR 601-210) Regular Army and Army Reserve Enlistment Program), Table 3-1 included a list of the Regular Army RE codes: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted * RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board found that based upon the facts and circumstances surrounding the applicant’s separation, the Board concluded that the RE code given at the time of separation was appropriate based upon regulatory guidance. The Board found insufficient evidence to make a change to the applicant’s military service record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 40-501(Medical Services – Standards of Medical Fitness), chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. The medical conditions and physical defects, individually or in combination, are those that: a. Significantly limit or interfere with the Soldier’s performance of their duties. b. May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military service. c. May compromise the health or well-being of other Soldiers. d. May prejudice the best interests of the Government if the individual were to remain in military service. 4. AR 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. The regulation provides that the military treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier’s condition becomes questionable in respect to physical ability to perform duty. Unit commanders will ensure that any physical defects impacting on a Soldier’s performance of duty are reflected in the Soldier’s evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. It also states that the MTF commander having primary medical care responsibility will conduct an evaluation of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a medical evaluation board (MEB). The MEB will recommend referral to a physical evaluation board (PEB) those Soldiers who do not meet retention standards. 5. AR 635-5-1, 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. SPD code SEJ is the appropriate code to assign to Soldiers separated under the provisions of AR 635-40, Chapter 4 Disability, permanent (enhanced). 6. AR 601-210, covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-1 included a list of the Regular Army RE codes: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible for enlistment unless a waiver is granted * RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment NOTHING FOLLOWS