RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060012646 


	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.


	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 honorable discharge under the Trainee Discharge Program (TDP) after 3 months and 14 days of active duty service be changed to a retirement.

2.  The applicant essentially states that he was marked as non-productive, even though he excelled in all areas over most of his comrades.  He states that he was in too long to receive a discharge under the TDP.  He mentions, in effect, excessive violence and beatings by noncommissioned officers.  He also states that he was only 17 years old, and was not fully mature yet, and that this undoubtedly contributed to his lifelong battle with severe depression.   

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge From Active Duty) and a self-authored letter in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 23 February 1982, the date of his discharge from the Regular Army.  The application submitted in this case is dated 22 August 2006.

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 that he enlisted in the Regular Army on 10 November 1981.  

4.  The applicant was counseled on 7 January 1982 for failing to obey a lawful order.  On 9 January 1982, he was counseled for smoking in a room, which was against standard operating procedures.  On 20 January 1982, he was counseled for drinking beer when unauthorized, at the post exchange when unauthorized.

5.  Between 13 January 1982 and 4 February 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions, for failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order, and for possessing a pint of Southern Comfort.  Collectively, his punishment consisted of forfeiture of $59.00, 7 days restriction, and confinement at a correctional custody facility (CCF) for 
7 days.

6.  Between 9 and 11 February 1982, a mental health evaluation was performed on the applicant.  The mental health officer indicated that the applicant was immature and passive-aggressive, and had acute situational maladjustment.  The mental health officer recommended that the applicant be eliminated by administrative action as determined by his command.  He also indicated that the applicant was capable of distinguishing right from wrong and adhering to the right.  He also stated that the applicant was responsible for his actions and possessed the mental and emotional capacity to understand and participate in board and other legal proceedings.  The mental health officer also remarked that self-inflicted lacerations on the applicant appeared to have been a manipulative gesture to evade his CCF sentence, and that he did not appear to be motivated to abide by rules of his unit, nor to accept the consequences of his disobedience.

7.  On 11 February 1982, the applicant’s commanding officer informed him that he was initiating action to release him from active duty for transfer into the Individual Ready Reserve, or discharge him from the United States Army under the TDP, which was governed by Army Regulation 635-200 (Enlisted Personnel), Paragraph 5-33 (TDP).  The specific reasons for his proposed action were that the applicant lacked the maturity and discipline necessary to become a productive Soldier.  

8.  Also on 11 February 1982, the applicant acknowledged notification of his proposed honorable separation from the United States Army.  The applicant did not desire to make a statement or submit a rebuttal in his own behalf.  

9.  On 18 February 1982, the proper approval authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, Paragraph 5-33.  On 23 February 1982, the applicant was discharged accordingly.  His DD Form 214 shows that he had only 3 months and 14 days of active duty service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  The applicant essentially stated that he was marked as non-productive, even though he excelled in all areas over most of his comrades.  However, his military records show that he failed a diagnostic physical fitness test during his first week of training.  There is also no record of him excelling at any aspect of initial entry training.  

12.  He also essentially stated that he was in too long to receive a discharge under the TDP.  However, he was discharged after just 104 days of active duty, well before the 179 day limit for a discharge under the TDP.

13.  There is no evidence in the applicant’s military records, and the applicant did not provide any evidence which conclusively shows any excessive violence or beatings by noncommissioned officers.  

14.  The applicant also stated that he was only 17 years old, and was not fully mature yet.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

15.  There is no evidence in his military records, and the applicant failed to provide any evidence which would show that he should have been retired.

16.  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 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge under the TDP after 
3 months and 14 days of active duty service should be changed to a retirement.

2.  Evidence of record clearly shows that the applicant repeatedly and blatantly violated orders on numerous occasions, and accepted NJP under Article 15 of the UCMJ on two occasions within his first 3 months of service. 

3.  While the applicant contends that he should have been retired after only completing 3 months and 14 days of active duty service, there is no evidence in his military records, and the applicant failed to provide any evidence which shows that he should have been retired. 

4.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 February 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
22 February 1985.  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

___JI  ___  __SP ___  ___QS __  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.




______ John Infante_________
          CHAIRPERSON




INDEX

CASE ID
AR20060012646
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070403
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
19820223
DISCHARGE AUTHORITY
AR 635-200, PARAGRAPH 5-33 
DISCHARGE REASON
TRAINEE DISCHARGE PROGRAM
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.2500.0000
2.

3.

4.

5.

6.