RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 July 2005
      DOCKET NUMBER:  AR20040007387


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
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 to RE-2.

2.  The applicant states, in effect, that

      a.  his RE code should be RE-2 to show he was separated for the good
of the individual and service;

      b.  his current RE code of RE-3 shows marginal non-productive
performance;

      c.  he was enlisted in the Army in 1980 with borderline diabetes,
which was discovered when he tried to reenlist in the Army in January 1983;


      d.  his diabetes was said to have existed for a long period.  As
such, this condition should have been discovered and permanently
disqualified him for military service at the time of his original
enlistment;

      e.  he has medical records from two civilian hospitals showing post
service treatment of diabetes; and

      f.  his veterans benefits should be reinstated because the failure of
the Army to detect his diabetes in 1980 caused him to be wrongfully
discharged.

3.  The applicant provides no evidence or documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
6 November 1980, the date of his discharge.  The application submitted in
this case is dated 9 September 2004.

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 limitations 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 military records show he entered active service on 21
August 1980 for a period of 3 years.

4.  The applicant received formal counseling on 10, 13, 14, 15, 16, 17, 18
and
22 September 1980 for the following deficiencies: his desire to be
discharged, failing his weekly performance tests, lack of motivation,
inability to adjust, consequences of going absent without leave (AWOL),
negative attitude, and failure to shave on more than one occasion.

5.  The records contain statements from three non-commissioned officers
(NCOs) who stated the applicant was immature and refused to adapt to the
standards of the Army.  The NCOs further stated that due to the applicant's
lack of motivation and obsession with getting out of the Army no amount of
counseling, encouragement or supervision seemed to have any effect on him.
The NCOs recommended that it would be in the best interest of the
individual and the U.S. Army for the applicant to be discharged under the
Trainee Discharge Program (TDP).

6.  On 16 and 23 September 1980, the applicant was examined by a behavioral
science specialist.  The examiner found that the applicant had a negative
attitude toward the military.  He determined that the applicant had the
ability to complete training but had no desire to do so.  The examiner also
determined that it was likely that there would be future problems in
dealing with the applicant and that consideration for retention/elimination
should be base on his performance in training.  The examiner cleared the
applicant for administrative action deemed appropriate by his command.

7.  The applicant's enlistment medical examination and his service medical
records do not contain a diagnosis of diabetes.

8.  On 8 October 1980, the applicant's commander notified him that he was
initiating action to discharge him under the provisions of paragraph 5-33,
Army Regulation 635-200 (Active Duty Enlisted Administrative Separations),
the Trainee Discharge Program, due to his immature attitude, his inability
to cope with situations while under stress, and his lack of self discipline
which reveals considerable behavioral characteristics that are not
compatible with continued military service.

9.  The commander advised the applicant that, if approved, his discharge
would be characterized as honorable.  However, if he does not have
sufficient prior military service, veterans benefits normally associated
with completion of honorable active duty service will be affected.
Furthermore, he would not be permitted to reenlist in the U.S. Army within
2 years from the date of his separation.

10.  The commander further advised the applicant of his right to submit
statements in his own behalf, request a separation physical, to be assisted
by counsel, to waive any of these rights, and to withdraw any waiver of
rights at any time prior to the date the discharge authority directs or
approves his discharge.

11.  On 8 October 1980, the applicant submitted a statement acknowledging
that he had been advised by counsel of the reasons for separation and the
rights available to him.  The applicant stated that he was not submitting
statements in his own behalf and that he did not desire a separation
medical examination.

12.  On 3 November 1980, the appropriate authority approved the
recommendation for discharge under the Trainee Discharge Program with an
honorable discharge.

13.  On 6 November 1980, the applicant was discharged under the provisions
of paragraph 5-33 of Army Regulation 635-200 due to marginal or non-
productive performance and assigned a RE code of RE-3.  He had completed 2
months and 16 days of active service characterized as honorable.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel from the Army.  Paragraph 5-33 of this
regulation, in effect at the time, governed the Trainee Discharge Program
(TDP).  This program provided for the separation of service members who
lacked the necessary motivation, discipline, ability or aptitude to become
productive soldiers or have failed to respond to formal counseling.  The
regulation essentially requires that the service member must have
voluntarily enlisted; must be in basic, advanced individual training, on
the job, or service school training prior to award of a military
occupational specialty and must not have completed more than 179 days of
active on their current enlistment by the date of separation.  The
regulation provided that Soldiers may be separated when they have
demonstrated that they are not qualified for retention due to failure to
adapt socially or emotionally to military life; cannot meet minimum
standards prescribed for successful completion of training because of lack
of aptitude, ability, motivation, or self-discipline; or have demonstrated
character and behavior characteristics not compatible with satisfactory
continued service.

15.  Table 4-11 (Armed Forces Reenlistment Eligibility Codes) of Army
Regulation 601-210, in effect at the time, stated that RE-3 applies to
persons who are not qualified for continued Army service, but the
disqualification is waivable.  These individuals are ineligible for
enlistment unless a waiver is granted.

16.  RE–2 applies to persons separated for the convenience of the
Government whose reenlistment is not contemplated.  These individuals are
fully qualified for enlistment.

17.  Appendix C (Waiverable Moral and Administrative Disqualifications) of
Army Regulation 601-210 lists waivable moral and administrative
disqualifications.  Line X of the Appendix shows that former Army members
last discharged under the Trainee Discharge Program may request a waiver to
enlist in the U.S. Army.

18.  Title 38, United States Code, permits the Department of Veterans
Affairs (DVA) to award compensation for a medical condition which was
incurred in or aggravated by active military service.  The DVA, in
accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records)
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 RE code should be RE-2 because he was
determined to have diabetes in February 1983 and that the condition should
have been discovered at the time of his original enlistment.  He further
contends that his veterans benefits should be reinstated because the
failure of the Army to detect his diabetes in 1980 caused him to be
wrongfully discharged.

2.  The records of post service treatment for diabetes were not available
for the Board to review.  There is no diagnosis of diabetes in the
applicant's service medical records.  The applicant was not determined to
have diabetes until over
2 years after the date of his discharge.  Therefore, his contention is not
supported by the evidence.

3.  The applicant was discharged by reason of marginal or non-productive
performance, therefore, he was not qualified for continued Army service
However, the reason for discharge is a waiverable disqualification.
Therefore, the assignment of RE-3 is correct.

4.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

5.  The ABCMR begins its consideration of each case with the presumption of
administrative regularity.  In the absence of evidence to the contrary, it
is determined that all requirements of law and regulations were met and the
rights of the applicant were fully protected throughout the separation
process.  Further, it is determined that the type of discharge and the
reason for separation were appropriate considering all the facts of the
case.

6.  The ABCMR does not correct records solely for the purpose of
establishing eligibility for benefits.  In addition, granting veteran's
benefits is not within the purview of the ABCMR.  Any questions regarding
eligibility for service-connected disability should be addressed to the
DVA.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 November 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
5 November 1983.  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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MHM__  __CAK__  __ENA __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                       _   Melvin H. Meyer_ _
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007387                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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