RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 January 2005
      DOCKET NUMBER:  AR2004106626


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |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 the narrative reason for his
separation be changed.

2.  The applicant states, in effect, that the portion of the entry in Item
28 (Narrative Reason for Separation) of his separation document (DD Form
214) that reads “Nonproductive or Marginal” should be removed because it
does not apply in his case.  He claims that he was honorably discharged
based on a psychiatric evaluation.  He claims he also expected to receive
care that he never did and now cannot afford the payments to see a
psychiatric counselor in order to receive education benefits.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 October 1980.  The application submitted in this case is
dated
13 March 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 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 shows he enlisted in the Regular Army and
entered active duty on 5 August 1980 and was assigned to Fort Jackson,
South Carolina to attend basic combat training.

4.  The record confirms the applicant was formally counseled by members of
his chain of command on five separation occasions between 28 August and 13
September 1980, for a myriad of conduct and performance related issues.

5.  On 3 September 1980, the applicant’s unit commander referred the
applicant to the community health activity for an evaluation for retention.
 The unit commander cited the applicant’s anger and inability to get along
with peers as the reasons for the referral.

6.  The community health activity medical examiner completed an evaluation
of the applicant and psychiatrically cleared the applicant for any
administrative or judicial action deemed appropriate by the command.  He
further recommended the applicant be discharged.

7.  On 15 September 1980, the unit commander notified the applicant that he
was proposing the applicant’s separation under the provisions of the
Trainee Discharge Program (TDP).  The unit commander cited the applicant’s
lack of motivation to become a productive Soldier as the basis for taking
the action.  The applicant acknowledged receipt of the notification and
election not to make a statement in his own behalf and elected not to have
a separation medical examination.

8.  On 30 September 1980, the separation authority approved the applicant’s
discharge under the provisions of paragraph 5-33, Army Regulation 635-200
under the TDP and directed the applicant receive an honorable discharge.
On
6 October 1980, the applicant was discharged accordingly.

9.  The separation document (DD Form 214) issued to the applicant on the
date of his separation, 6 October 1980, shows he completed a total of 2
months and
2 days of active military service and did not complete basic combat
training.  Item 25 (Separation Authority) contains the entry Paragraph 5-
33f(2), Army Regulation 635-200 and Item 28 contains the entry Trainee
Discharge Program Marginal or nonproductive.  Item 26 (Separation Code)
contains the separation program designator (SPD) code JET.

10.  There no indication that the applicant petitioned the Army Discharge
Review Board (ADRB) for a change in the narrative reason for his separation
within its 15-year statute of limitations.

11.  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 5-33, 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.

12.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities
(regulatory or directive), reasons for separating soldiers from active
duty, and the SPD codes to be entered on the DD Form 214.  The regulation
in effect at the time established SPD code JET as the appropriate code to
assign soldiers who were separated under the provisions of paragraph 5-
33f(2), Army Regulation 635-200 and established the narrative reason for
separation for these members as “Trainee Discharge Program (TDP) Marginal
or nonproductive”.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the narrative reason for his separation
should be changed because he was honorably separated based on a psychiatric
evaluation was carefully considered.  However, there is insufficient
evidence to support this claim.

2.  The evidence of record confirms the applicant underwent a mental status
evaluation and was psychiatrically cleared for separation by competent
medical authority.  There was no indication of a disabling mental
condition.  Further, the applicant declined to take a separation medical
examination and there is no evidence to suggest he suffered from either a
mental or physical condition that would have disqualified him for retention
or separation.

3.  The evidence of record further confirms the applicant’s separation
processing was accomplished in accordance with the applicable regulations
in effect at the time.  All requirements of law and regulation were met and
the rights of the applicant were fully protected throughout the separation
process.

4.  In accordance with the regulation in effect at the time, the narrative
reason for separation for members separated under the provisions of
paragraph 5-33f(2), Army Regulation 635-200 was “Trainee Discharge Program
(TDP) Marginal or nonproductive”, as is recorded in Item 28 of the
applicant’s DD Form 214.  Thus, there appears to be no error or injustice
related to this entry and as a result, there is an insufficient evidentiary
basis to support granting the requested relief.

5.  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.
6.   Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 October 1980, the date of his
discharge. Thus, the time for him to file a request for correction of any
error or injustice expired on 5 October 1983.  However, he failed to 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

___JTM _  __LDS __  __CAK __  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.




            ____Linda D. Simmons _____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106626                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/11                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1980/10/06                              |
|DISCHARGE AUTHORITY     |AR 635-200 C5                           |
|DISCHARGE REASON        |TDP                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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