RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: November 25, 2003
         DOCKET NUMBER: AR2003090351

         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Ms. Lana E. McGlynn		Member
Ms. Yolanda Maldonado		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that errors contained on his 9 February 1977 separation document (DD Form 214) be corrected.

2. The applicant states, in effect, that his DD Form 214 shows that the date he entered active duty was 12 December 1976. However, he remembers taking the entrance test earlier in 1976 in Orlando, Florida, but his recruiter sent him to Philadelphia, Pennsylvania to enlist for some unknown reason. He states that after enlisting in Philadelphia, he had to wait a week before taking the plane to Fort Sill, Oklahoma, where he waited two more weeks to begin training. He states that he asked his recruiting officer if this time was lost and he was told that all the time from the date of entry would be recorded in his record. He asks that this error now be corrected.

3. The applicant also states that while in training, after returning from a Christmas leave, he received a letter from his wife that forced him to leave
Fort Sill without permission. He remained away less than a week and after his return, he presented his wife’s letter and received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). He further claims that his punishment included two weeks of house arrest and upon completion of this period, he was supposed to resume training. However, at the end of the two weeks, he was called to the main office, where he believed he would receive instructions on the resumption of his training, but instead he was told to sign documents he did not understand. He claims he was never informed of what he was signing and as a result, his legal rights were violated.

4. The applicant suggests that based on the errors in his separation document and injustice he suffered, it would be appropriate to change the date of entry on his DD Form 214 to 12 September 1976 and the discharge date to 20 February 1977.

3. The applicant provides the enclosed self-authored statement in support of his application.

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CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of a DD Form 214 he received on
9 February 1977. The application submitted in this case is dated 21 April 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant’s record confirms that he enlisted in the Regular Army and entered active duty on 12 November 1976. The enlistment contract on file shows that he completed his enlistment processing at the Philadelphia Armed Forces Examination and Entrance Station, and that his recruiter was a member of the Philadelphia District Recruiting Command. Although the applicant’s home of record is Orlando, Florida, there is no indication that he was processed for enlistment at that location.

4. The applicant’s Personnel Qualification Record (DA Form 2-1) shows that he arrived at the Fort Sill reception station on 12 November 1976, and that he was reassigned to his training unit on 17 November 1976.

5. On 24 January 1977, the applicant departed absent without leave (AWOL) from his training unit at Fort Sill. He remained away for four days until returning on 28 January 1977.

6. On 1 February 1977, he accepted NJP for his AWOL offense. The resultant punishment included a forfeiture of $85.00 and 14 days of restriction and extra duty.

7. On 1 February 1977, a Trainee Discharge Program (TDP) Counseling Form (TRADOC Form 871-R) was completed by members of the applicant’s chain of command. In this counseling form, the applicant’s drill sergeant indicated that the applicant had a negative attitude toward his superiors and that he could not get along with his peers. He further stated that when a drill sergeant or other members of the cadre told the applicant something, he would get angry and say they were picking on him.

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8. The applicant’s first sergeant (1SG) completed his portion of the TRADOC Form 871-R by stating that the applicant was counseled on his lack of interest in the Army on numerous occasions. It further indicated that the applicant lacked interest and was disrespectful to his drill sergeant in the presence of the 1SG. The 1SG also stated that the applicant expressed to him that he wanted out of the Army. The 1SG concluded by stating that he had tried to help the applicant in every sense possible, but the applicant did not listen. As a result, he recommended that the applicant be discharged.

9. In his portion of the TRADOC Form 871-R, the applicant’s unit commander stated that the applicant did not meet the minimum standard required of a soldier. He indicated that despite numerous counseling sessions, his attitude remained negative. The applicant refused to obey the orders of those appointed over him and resisted any guidance from his drill sergeant, the 1SG, or himself. He finally recommended that the applicant be immediately discharged from the service.

10. On 31 January 1977, the applicant’s unit commander notified the applicant that he was initiating action to discharge him under the provisions of paragraph 5-39 (TDP), Army Regulation 635-200. The unit commander indicated that the reason for the separation action was the applicant’s continued display of contempt for the authority of those lawfully appointed over him. The unit commander further stated that despite every effort made by the cadre, the applicant’s attitude and performance showed no improvement and it was apparent that he resented the Army as a whole and the people in it. The unit commander informed the applicant of the rights he had in connection with the separation action.

11. In a first endorsement to the unit commander’s separation recommendation, the applicant acknowledged receipt of the separation action notification. He also indicated that he understood that due to the noncompletion of requisite active duty service, veterans benefits administered by the Department of Veterans Affairs (VA) and/or other veterans benefits normally associated with completion of honorable service would be affected. The applicant also stated that he did not desire to make a statement in his own behalf and that he did not desire to have a separation physical examination.

12. On 5 February 1977, the separation authority approved the TDP separation action on the applicant and directed that the applicant receive an honorable discharge under the provisions of paragraph 5-39, Army Regulation 635-200. On 9 February 1977, the applicant was discharged accordingly.

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13. The DD Form 214 issued to the applicant on the date of his separation confirms that on that date, he held the rank of private/E-1. This document also showed that he had completed a total of 2 months and 24 days of creditable active military service, and that he was separated under the provisions of paragraph 5-29, Army Regulation 635-200, by reason of TDP. The applicant authenticated this document with his signature in Item 29 (Signature of Person Being Separated).

14. Army Regulation 635-200 sets forth the basic authority, establishes the policy, and prescribes the procedures for the separation of enlisted soldiers of the Army. Paragraph 5-39, in effect at the time, provided the authority to separate soldiers prior to the completion of their training for one of the following reasons: could/would not adapt; could not meet training standards; did not
meet moral, mental, or physical standards; or character and behavior disorder. An honorable discharge was authorized for members separating under this provision.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s claim that the date of entry and separation date entered on his 9 February 1977 DD Form 214 was carefully considered. However, his enlistment contract and DA Form 2-1 confirm that he enlisted in the RA
and entered active duty on 12 November 1976, which is the date entered in
Item 15 (Date Entered Active Duty This Period) of his DD Form 214.

2. The evidence of record also confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulation in effect at the time. It further shows that the applicant was properly notified of the rights he had in connection with the separation action, and that he voluntarily elected not to submit a rebuttal statement in his own behalf.

3. Lacking independent evidence to the contrary, it appears that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

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.

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5. Records show the applicant should have discovered the error or injustice now under consideration on 9 February 1977; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 9 February 1980. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

_LEM___ __YM__ __RO___ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  Raymond V. O’Connor
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090351
SUFFIX
RECON
DATE BOARDED	2003/12/DD
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1977/02/09
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	TDP
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1021	110.0000
2.
3.
4.
5.
6.