BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090009071 


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 his reentry eligibility (RE) code of RE-3 be changed.  He also requests that his DD Form 214 be corrected to show the Vietnam Ribbon (Vietnam Service Medal).

2.  The applicant states, in effect, that he was told by an Air Force recruiter that he needed a waiver to enlist.  He also states, in effect, that he enlisted in the Army prior to the end of the Vietnam War and was placed in the Delayed Entry Program (DEP).

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), a page of his DA Form 2-1 (Personnel Qualification Record), and his resume 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 he enlisted in the DEP on 2 April 1975 and entered active duty on 18 June 1975 for a period of 3 years.

3.  Item 5 (Overseas Service) of his DA Form 2-1 does not show that he was assigned to the Republic of Vietnam during his enlistment.

4.  On 4 May 1978, the applicant voluntarily, in writing, requested separation from the U.S. Army because of marital problems.  The applicant was in the process of a divorce and had sole custody of their child.

5.  On 25 May 1978, the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), paragraph 6-3b, by reason of hardship. 
The DD Form 214 he was issued at the time confirms that he had completed a total of 2 years, 11 months, and 7 days of active military service.  The DD Form 214 also shows that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of KDB and an RE code of 3.

6.  The applicant submitted a copy of a page of his DA Form 2-1 that shows that his character of service was honorable and that he received an RE code for "not qualified for reenlistment unless waiver is granted."

7.  The applicant submitted a copy of his resume which shows his work history from August 1979 to April 2009.

8.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that 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 the Department of Defense and the military services to assist in the collection and analysis of separation data.  It notes that KDB is the appropriate SPD code for individuals separated for hardship and when the regulatory authority for the individual's release from active duty is Army Regulation 635-200, paragraph 6-3b.

9.  The SPD/RE Code Cross Reference Table) in effect at the time established RE code 3 as the proper reentry code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 6, for hardship.

10.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

11.  The Department of Defense Financial Management Regulation defines creditable and noncreditable service.  Service as an enlisted member in a Reserve Component, including Ready Reserve service (inactive and active) under the DEP before beginning active duty, is deemed creditable service provided the Reserve enlistment was entered into before 1 January 1985.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his RE-3 code be changed was carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief.

2.  By regulation, the SPD code of KDB and the RE code of RE-3 are the proper codes assigned to members separated under the provisions of Army Regulation 635-200 by reason of hardship.  Therefore, the RE-3 code assignment was and remains valid.

3.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for changing properly assigned entries and codes from a previous period of military service.

4.  The applicant is advised that although his RE code has not been upgraded, this does not mean that he is disqualified from reenlistment.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of the disqualification.  Therefore, if he desires to enlist, the applicant should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the service at the time and are required to process waivers of RE codes.

5.  There is no evidence in the applicant's record nor did the applicant submit any evidence that shows that the applicant served in the RVN.  As such, he is not entitled to award of the Vietnam Service Medal.  The fact the he may have enlisted in the DEP prior to the end of the Vietnam era is not a basis for award of the VSM.

6.  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)                                         AR20090009071



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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