IN THE CASE OF: BOARD DATE: 3 December 2009 DOCKET NUMBER: AR20090011682 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that the Separation Program Number (SPN)/ Separation Program Designator (SPD) code be removed from his DD Form 214 (Report of Separation from Active Duty). 2. The applicant states, in effect, that SPN/SPD codes are unlawful and should be removed from his DD Form 214. 3. The applicant provides no documentary evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's record shows that he enlisted in the Regular Army and entered active duty on 25 February 1971. He was trained in and awarded military occupational specialty (MOS) 62D (Asphalt Equipment Operator). 3. The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist four (SP4), on 31 October 1971, and this is the highest rank he attained while serving on active duty. It shows he was reduced to private first class (PFC) on 13 September 1973, and this is the rank he held on the date of his release from active duty (REFRAD). It also shows he served in the Republic of Vietnam (RVN) from 19 July 1971 through 1 May 1972 and that he earned the National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal, Expert Marksmanship Qualification Badge with Rifle Bar, and 1 Overseas Service Bar during his active duty tenure. 4. On 22 February 1974, the applicant was honorably REFRAD. The DD Form 214 he was issued shows, in item 9c (Authority and Reason), that he was separated under the provisions of paragraph 2-18, Army Regulation 635-200 and he was assigned an SPD code of 201 (expiration of term of service). 5. Army Regulation 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 also establishes standardized policy for preparing and distributing the DD Form 214. The version of the regulation in effect at the time of the applicant's REFRAD stated to enter the statutory and/or regulatory authority for separation plus the SPD code in item 9c of the DD Form 214. 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. The version of the regulation in effect at the time stated, in pertinent part, that the SPD code of 201 was the appropriate code to assign Soldiers separated under the provisions of chapter 2, Army Regulation 635-200, by reason of expiration of term of service. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that the SPN/SPD code should be removed from his DD Form 214 because it is unlawful has been carefully considered. However, there is insufficient evidence to support this claim. 2. The regulation in effect at the time of the applicant's REFRAD provided for entering the statutory/regulatory authority for separation plus the SPD code in item 9c of the DD Form 214. 3. Current regulatory guidance still provides for entering SPD codes on the DD Form 214 to identify the authority and reason for discharge. As a result, the addition of these codes on the DD Form 214 is authorized by the governing regulation and there is no evidence of record or independent evidence provided by the applicant that would support a conclusion that the addition of SPN/SPD codes to the DD Form 214 has ever been or is at the present time unlawful. As a result, there is an insufficient evidentiary basis to support granting the requested relief. 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 this requirement. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ X_______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20090011682 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090011682 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1