RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
				  


	BOARD DATE:	  8 April 2008
	DOCKET NUMBER:  AR20080000893 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. David K. Haasenritter

Member

Mr. Edward E. Montgomery

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 reason for her discharge be changed from "Marginal or Non-Productive" to "Physical Disability."

2.  The applicant states that she had medical issues during the time of her service.  She further states that she was injured while on active duty. 

3.  The applicant provides a copy of her Certificate of Release or Discharge from Active Duty (DD Form 214).

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.   On 14 October 1980, the applicant enlisted in the Regular Army for 3 years.  She was assigned to Fort McClellan, Alabama, for initial training as a military policeman.  There is no evidence showing that she completed this training or that she was awarded a military occupational specialty.

3.   The applicant’s medical records show:

	a.  that on 14 October 1980, she requested and was granted a waiver of one pound overweight for the purpose of enlisting in the Regular Army;

b.  that she went to the medical dispensary thirty times between 
27 October 1980 and 1 March 1981 with complaints of stomach aches, headaches, eye and ear problems, numbness, sore ankles, black outs, chest pains, falling asleep while standing, nasal and chest congestion, and to request birth control pills;

c.  that on 24 November 1980, she received a temporary profile for ankle pain;

d.  that on 28 January 1981, she received a temporary profile for headaches; and

e.  that on 3 March 1981, the medical officer for the outpatient clinic informed the applicant’s commander that he and other physicians had seen the applicant for a variety of medical complaints, all with  minimal physical findings.  He contended that the applicant had over-utilized the medical department for a variety of minor and non-verifiable illnesses and suggested that her “sick call abuse” be handled by her commander.

4.  On 6 April 1981, the applicant’s commander recommended that she be discharged under the provisions of Army Regulation 635-200, paragraph 5-33, Trainee Discharge Program.  The commander stated that the applicant had demonstrated character and behavioral traits that were not conducive to successful military service.  He cited her excessive number of sick calls, and her lack of motivation to train.  The applicant had failed to meet the minimum physical fitness standards and insisted she could not cope with the stress of the Army.  

5.  The applicant did not desire counsel, elected not to make a statement in her own behalf, and declined a separation medical examination.

6.  On 7 April 1981, the appropriate authority approved the recommendation and directed that the applicant receive an Honorable Discharge Certificate.  

7.  On 9 April 1981, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-33 as a marginal or non-productive Soldier. Accordingly, she was given a Separation Program Designator (SPD) Code of JET and a reenlistment code of 3.  Her character of service was honorable.

8.  Army Regulation 635-200 (Personnel Separations) 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. 

9.  Army Regulation 635-40 provides, in pertinent part, that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant had medical issues during her period of active duty.  However, there is no evidence showing that she incurred or suffered from any injury or illness that was serious enough to have made her medically unfit for further service.  Furthermore, she declined a separation medical examination.

2.  The applicant was administratively discharged under the Trainee Discharge Program based on character and behavioral traits that were not conducive to successful military service.

3.  The narrative reason for the applicant’s discharge was correctly entered on her separation document in accordance with governing regulations.  There is no evidence of error or injustice.

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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ LDS __  __DKH__  __EEM  _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.






__    Linda D. Simmons __
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
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.