IN THE CASE OF:	

		BOARD DATE:	23 July 2009  

		DOCKET NUMBER:  AR20090006544 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank/grade as specialist (SPC)/E-4.  He also requests that his DD Form 214 be corrected to show award of the Purple Heart and any other awards he may have earned, and correction of his reenlistment eligibility (RE) code from RE-3 to RE-1.

2.  The applicant states that he was separated from the Army in the rank of SPC; however, his DD Form 214 shows his rank/grade as private (PVT)/E-1.  He adds that the RE code shown on his DD Form 214 is unexplainable and it is inconsistent with his separation code.  He further adds that he was awarded the Purple Heart and several other awards that are not shown on his DD Form 214.

3.  The applicant provides a copy of his DD Form 214, dated 7 March 2004; Permanent Orders 153-010D and a certificate, dated 1 June 2004, showing award of the Purple Heart in support of his request. 

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 records show he enlisted in the Regular Army for a period of 3 years on 8 March 2001.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).   

3.  The applicant’s records also show he served in Kuwait/Iraq from 14 March to 13 December 2003.  He was assigned to Company A, 3rd Battalion, 502nd Infantry Regiment, Fort Campbell, KY.

4.  On 12 January 2004, Headquarters, 101st Airborne Division, Fort Campbell, published Orders 12-0020 reassigning the applicant to the U.S. Army Transition Center for the purpose of separation, effective 7 March 2004.  The orders listed the applicant’s rank as PVT.

5.  On 13 January 2004, the applicant underwent preseparation counseling at Fort Campbell.  Item 3 (Grade) of his DD Form 2648 (Preseparation Counseling Checklist) shows his grade as E-1.

6.  The applicant’s records show he was honorably released from active duty under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations) on 7 March 2004 by reason of normal expiration of term of service (ETS).  The DD Form 214 he was issued shows he completed 3 years of creditable active service.  This form also shows the following entries:

	a.  items 4a (Grade, Rate or Rank), 4b (Pay Grade), and 12h (Effective Date of Pay Grade) show his rank/grade at the time of release from active duty as PVT/E-1 and his effective date as 1 December 2003;

	b.  item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, the Army Service Ribbon, the overseas service bar, the Combat Infantryman Badge, and the Air Assault Badge; 

	c.  item 28 (Separation Code) shows the entry "LBK"; 

	d.  item 27 (RE Code) shows the entry "3";

	e.  item 12h (Effective Date of Pay Grade) shows the entry "2003 12 01."
7.  Headquarters, 101st Airborne Division, Fort Campbell, KY, Permanent Orders 153-010D, dated 1 June 2004, show he was awarded the Purple Heart for wounds received in action on 28 November 2003.  These orders show his rank as PVT/E-2 in the standard name line.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 provides that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.  It also states, 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. 

9.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the US Army Reserve.  Table 3-1 included a list of the Regular Army RE codes.  An 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.  An 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 unless a waiver is granted.  

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "LBK" SPD code is the correct code for Soldiers separating under chapter 4 of Army Regulation
635-200 by reason of ETS (involuntary release from active duty, used for Regular Army Soldiers ineligible or otherwise denied reenlistment. 

11.  The SPD/RE Code Cross Reference Table, dated 31 March 2003, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "LBK" has a corresponding RE code of "3." 

12.  Review of the applicant’s records indicates his entitlements to additional awards that are not shown on his DD Form 214.

13.  Army Regulation 600-8-22 (Military Awards) states that individuals authorized the Iraq Campaign Medal must have served in direct support of Operation Iraqi Freedom (OIF).  The area of eligibility encompasses all land area of the country of Iraq, and the contiguous water area out to 12 nautical miles, and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of OIF.  Only one award of the Iraq Campaign Medal may be authorized for any individual, and under no condition will personnel receive the Iraq Campaign Medal, the Global War on Terrorism Expeditionary Medal, the Afghanistan Campaign Medal, or the Armed Forces Expeditionary Medal for the same action, time period or service.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive days or for 60 non-consecutive days or meet one of the following criteria:  

	(1)  be engaged in combat during an armed engagement, regardless of the time in the area of eligibility, while participating in an operation or on official duties;

	(2)  is wounded or injured and requires medical evacuation from the area of eligibility; or 

	(3)  while participating as a regularly assigned air crewmember flying sorties into, out of, within or over the area of eligibility in direct support of the military operations; each day of operations counts as one day of eligibility. 

14.  A directive issued by the Department of Defense on 16 April 2008 designated four phases of Operation Iraqi Freedom as qualifying for a campaign star.  The applicant's records show that he participated in the Liberation of Iraq from 19 March 2003 to 1 May 2003, and the Transition of Iraq from 2 May 2003 to 28 June 2004 campaigns during his tour of duty in Iraq.  Army Regulation   600-8-22 states that a bronze service star will be awarded for wear on the Iraq Campaign Medal for participation in each campaign.

15.  Army Regulation 600-8-22 states that the Global War on Terrorism Service Medal is authorized for award to members of the Armed Forces of the United States who have participated in the Global War on Terrorism operations outside of the designated areas of eligibility (AOE), on or after 11 September 2001 to a future date to be determined.  Battalion commanders and commanders of separate units have the authority to award the Global War on Terrorism Service Medal for approved operations to units and personnel within his or her command. Service members must be assigned, attached, or mobilized to a unit supporting designated operations for 30 consecutive days or for 60 nonconsecutive days, or meet one of the following criteria: (1)  Initial award of the Global War on Terrorism Service Medal is limited to airport security operations (from 27 September 2001 through 31 May 2002) and Soldiers who supported Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom, or (2)  all Soldiers on active duty, including Reserve Component Soldiers mobilized, or National Guard Soldiers activated on or after 11 September 2001 to a date to be determined having served 30 consecutive days or 60 nonconsecutive days are authorized the Global War on Terrorism Service Medal. 

16.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his RE code as RE-1 and his rank/grade as SPC/E-4.  He also contends that his DD Form 214 should be corrected to show award of the Purple Heart and any other awards that he may have earned.  

2.  Permanent orders awarded the applicant the Purple Heart for wounds received in action on 28 November 2003 which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show award of the Purple Heart. 

3.  The evidence of record shows the applicant served a qualifying period for award of the Global War on Terrorism Service Medal which is not shown on his records; therefore, he is entitled to correction of his records to show this award.

4.  The evidence of record shows the applicant served in Kuwait/Iraq from 14 March 2003 to 13 December 2003 in support of Operation Iraqi Freedom.  This period of service entitles him to award of the Iraq Campaign Medal.  Furthermore, the applicant participated in two campaigns (the Liberation of Iraq and the Transition of Iraq) during his service in Iraq.  Therefore, he is also entitled to award of two bronze service stars to be affixed to the Iraq Campaign Medal. 

5.  There is no evidence of record to show the applicant was advanced to  SPC/E-4.  His Purple Heart orders indicate he was a PVT/E-2 at least as of       28 November 2003.  However, his DD Form 214 shows his PVT/E-1 date of rank as 1 December 2003, indicating he received a reduction in rank as a result of a disciplinary action and/or nonjudicial punishment.  In the absence of evidence to the contrary, it must be presumed that the applicant’s rank and grade are correctly shown on his DD Form 214.

6.  The available evidence confirms the applicant’s RE code was assigned based on the fact that he was involuntarily separated under the provisions of chapter 4 of Army Regulation 635-200.  He was assigned a separation code of "LBK" which has a corresponding RE code of "3."  With a rank and grade of PVT/E-1 at the time of his separation, he would have been ineligible for immediate reenlistment without a waiver, which would have warranted an RE-3.  In the absence of evidence to the contrary, it must be presumed that the RE code is also correctly shown on his DD Form 214. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Purple Heart, the Global War on Terrorism Service Medal, and the Iraq Campaign Medal with two bronze service stars to his DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his rank/grade and RE code. 




      _______ _   __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)                                         AR20090006544



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ABCMR Record of Proceedings (cont)                                         AR20090006544



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