IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090016717 


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 that his reentry eligibility (RE) code be changed from an RE code of 4 to 3.  

2.  The applicant states item 15 (Reenlistment Code) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) erroneously lists his RE code as 4 instead of 3.  

3.  The applicant provides a DD Form 214 and DD Form 215 (Correction to 
DD Form 214) 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 initially enlisted in the Regular Army on 
23 May 1968.  He completed the training requirements and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  Specialist four (SP4)/E-4 is the highest rank he attained while serving on active duty. 

3.  The applicant's record shows he served in the Republic of Vietnam (RVN) from 6 November 1969 through 22 January 1970, and he earned the following awards:

* Purple Heart
* National Defense Service Medal
* Vietnam Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar ( M-16 ) and 
Machinegun Bar (M-60)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)

4.  Special Orders Number 227, Headquarters, United States Army Retirement Activities, Fort Devens, Massachusetts, dated 9 November 1970, separated the applicant under the provisions of Army Regulation 635-40, due to "Temporary Disability Retirement (TDRL) Retirement," effective 12 November 1970.

5.  The applicant's DD Form 214 shows he was retired on 12 November 1970 and transferred to United States Army Reserve with a 70 percent disability rating. His narrative reason for separation shows "Ret Temp Dsabl UP Title 10 USC 1202."  His DD Form 214 shows he was assigned a Separation Program Number (SPN) code of 270 and an RE code of 4 based on the authority and reason for discharge.  His DD Form 214, Item 18 (Remarks), also contains the entry "AR 601-210, Table 2-7 (Non-Waiverable [sic] Qualifications) applies."  

6.  Army Regulation 635-5 (SPN and Authority Governing Separations) in effect at the time provided for assigning the SPN of 270 to Soldiers separated by reason of physical disability who were placed on the TDRL under the provisions of Army Regulation 635-40. 

7.  Army Regulation 601-210 provides the policy guidance on enlistment in the United States Army.  The version of the regulation in effect at the time listed nonwaivable disqualifications in Table 2-7 (Nonwaivable Disqualifying Separations).  Temporary disability and placement on the TDRL were not included in the list of nonwaivable disqualifications in Table 2-7; however, in the notes included at the bottom of the table, RE-3P was established as the proper code to assign members separated by reason of physical disability, including those discharged and/or transferred to the TDRL.  

8.  The current Department of the Army Separation Program Designator/
RE Code Cross Reference Table provides current Army policy guidance on assignment of RE codes.  It stipulates an RE code of 4 is the proper code to assign members separated by reason of temporary disability who are placed on the TDRL.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be changed to a 3 has been carefully considered and found to have merit.  

2.  The regulation in effect at the time of the applicant's separation provided for assigning the RE code of 3P to members separated by reason of physical disability and placed on the TDRL.  Further, temporary physical disability was not included in the list of nonwaivable disqualifying separations listed in Table 2-7 of Army Regulation 601-210.  Therefore, it would be appropriate to correct item 15 of the applicant's DD Form 214 by deleting the current entry and replacing it with the entry "RE-3P" and deleting the entry "AR 601-210, Table 2-7 
(Non-Waiverable [sic] Qualifications) applies" from item 30.  

3.  The applicant is advised that although a correction of his RE code is being recommended, he currently remains permanently disqualified from enlistment/reenlistment based on the current regulatory guidance that stipulates a temporary physical disability separation and placement on the TDRL is permanently disqualifying and requires assignment of an RE code of 4.   

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 as follows:

	a.  deleting the current entry from Item 15 and replacing it with the entry 
"RE-3P"; and 

	b.  deleting from Item 30 the entry "AR 601-210, Table 2-7 (Non-Waiverable [sic] Qualifications) applies."




      _______ _   _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)                                         AR20090016717



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ABCMR Record of Proceedings (cont)                                         AR20090016717



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