RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 January 2006 DOCKET NUMBER: AR20050001381 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. Carl W. S. Chun Director Mr. Robert J. McGowan Analyst The following members, a quorum, were present: Mr. John Infante Chairperson Mr. William F. Crain Member Mr. Gerald J. Purcell Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the following corrections be made to his DD Form 214 (Certificate of Release or Discharge From Active Duty): a. Block 12a – Change to 19900625 so as to include his delayed entry program (DEP) time. b. Block 26 – Change separation program designator (SPD) code to LIF. c. Block 27 – Change reentry (RE) code to RE-1. 2. The applicant states he served his country honorably with no nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, and no unauthorized absences (AWOL). He adds that his DD Form 214 is hindering his ability to obtain a Federal law enforcement job. 3. The applicant provides his DD Form 214. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice which occurred on 1 October 1993. The application submitted in this case is dated 18 January 2005. 2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant enlisted in the DEP on 25 June 1990. He was discharged from the DEP and enlisted in the Regular Army for 3 years on 27 November 1990. He served in military occupational specialty (MOS) 16S (MANPADS Crewmember) and was separated on 1 October 1993. 4. The applicant's DD Form 214 shows in Block 12a he entered active duty on 27 November 1990. It also shows he was honorably separated on 1 October 1993 under the provisions of Army Regulation (AR) 635-200, paragraph 5-3, by reason of Secretarial authority. He was assigned an SPD code of LFF and an RE code of RE-3. 5. AR 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214 (Certificate of Release or Discharge from Active Duty). It provides, in pertinent part: a. Completion of Block 12 (Record of Service) – DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in this block. However, it is creditable service for completing the statutory MSO (military service obligation), and will be entered in block 18. b. Completion of Block 26 (Separation Code) – Obtain correct entry from AR 635-5-1, which provides the corresponding separation program designator code for the regulatory authority and reason for separation. c. Completion of Block 27 (Reentry Code) – AR 601-210 determines RA and USAR reentry eligibility and provides regulatory guidance on the RE codes. 6. 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. It identifies the SPD code of LFF as the appropriate code to assign Regular Army enlisted Soldiers who are honorably discharged or released from active duty under the provisions of paragraph 5-3 of Army Regulation 635-200, based on a narrative reason for separation of Secretarial authority. 7. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time of the applicant's discharge, provides, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. RE-3 applies to persons who were not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable. The Army regulation further provides that prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect. DISCUSSION AND CONCLUSIONS: 1. The applicant’s request to change his date of entry on active duty to include his DEP time, to change his SPD code, and to change his RE code were carefully considered. 2. The applicant’s DEP time is appropriately reflected in block 18 of his DD Form 214 in accordance with the applicable regulation. He entered active duty on 27 November 1990 and block 12a of his DD Form 214 correctly reflects this. 3. The Separation Code and the associated Narrative Reason for Separation were appropriate, given the circumstances in this case. 4. The applicant’s separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. As a result, his separation was proper and equitable, and the RE-3 code he received was appropriately assigned based on the authority and reason for his separation. As a result, the RE-3 code assigned at the time of the applicant's discharge was, and remains, valid. 5. 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 this requirement. 6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 October 1993; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 November 1996. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __ji____ __wfc___ __gjp___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. John Infante ______________________ CHAIRPERSON INDEX CASE ID AR20050001381 SUFFIX RECON DATE BOARDED 20060119 TYPE OF DISCHARGE HD DATE OF DISCHARGE 19931001 DISCHARGE AUTHORITY AR 635-300 C 5-3 DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 100.0000 2. 3. 4. 5. 6.