IN THE CASE OF: BOARD DATE: 15 January 2009 DOCKET NUMBER: AR20080014494 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, change of his discharge to something other than the Trainee Discharge Program (TDP). 2. The applicant states that he was discharged due to computer error. Someone was told that he was being requested by the Marine Corps Reserve, but this was false. The Marine Corps Reserve had no file on him. He was discharged without benefits or compensation. He also states that he was discharged without cause, has been denied due process, and suffered cruel and unusual punishment. He was determined to make a life for himself, his wife and his son, even if it meant dying for his country. However, error put him out in the cold. 3. The applicant provides no supporting documentation. 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 enlisted in the Regular Army for 3 years and entered active duty on 11 May 1976. His enlistment documents show he was 19 years and 3 months old, he had completed the 10th grade, he held a general educational development (GED) certificate, and he was married and had a 6-month old child. 3. The applicant completed basic training but not he did not finish advanced individual training (AIT). 4. A 19 July 1976 counseling statement completed by the company commander recorded that the applicant persisted in his desire to get out of the Army because of his family problems. His wife and son had been evicted from their apartment and that the wife's father had refused to let her reside with him until the Soldier finished AIT. The company commander reported that he had tried to explain how the Soldier could help his family and tried, without success, to dissuade him from his insistence on being discharged. He considered the applicant a risk to become absent without leave (AWOL) which would only make his situation worse and not produce a quality Soldier. The company commander recommended that the applicant be separated with an honorable discharge under the TDP. 5. On the same day, the applicant acknowledged the recommendation for separation and declined to be represented by counsel, to make a statement in his own behalf, or to undergo a separation physical examination. 6. On 27 July 1976 the battalion commander recommended approval of the discharge. He also reported that both he and the command sergeant major had counseled the applicant but had been unable to change his mind. The separation authority approved the recommendation. 7. On 6 August 1976 the applicant was separated with an honorable discharge under the provisions of the TDP. He had 2 months and 26 day of creditable service and no time lost. 8. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 5 of the regulation provided, at that time, for the administrative separation of individuals who had demonstrated during the first 180 days of training that they lacked the necessary motivation, discipline, ability or aptitude to become effective Soldiers. This program, known as the Trainee Discharge Program, mandated the award of an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. There is no available evidence to substantiate the applicant's contention that he was discharged by mistake. Furthermore, the record is quite clear that he had a choice and that he wanted to be discharged. 2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge conformed to the provisions of the governing regulation. 3. 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) AR20080014494 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080014494 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1