IN THE CASE OF:	 

		BOARD DATE:	       20 November 2008

		DOCKET NUMBER:  AR20080013748 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his honorable discharge be changed to a medical discharge. 

2.  The applicant states, in effect, that the reason for discharge shown on his DD Form 214 (Report of Separation from Active Duty) is in error.

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

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.  The applicant enlisted in the Regular Army on 4 June 1976 and did not complete Initial Entry Training.

3.  TRADOC Form 871-R (TDP [Trainee Discharge Program] Counseling), dated 12 June 1976, shows a senior noncommissioned officer (NCO) counseled the applicant stating that he "does not cooperate with others and is a slow learner.  He lacks motivation needed to adjust to military life."   On the same form, another senior NCO on 6 July 1976 indicated that he had counseled the applicant on numerous occasions, all with negative results.  Further, on the same form, the company commander indicated on 10 July 1976 that he had talked to the applicant for his disregard for authority and his poor performance, which he rated as marginal with no hope for sufficient improvement.  The company commander also noted that all efforts to motivate the applicant had failed and he concluded that a discharge would be in the best interest of the individual and the Army.

4.  On 15 July 1976, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-39, the Trainee Discharge Program.  The unit commander cited that the applicant could not meet the minimum standards required for prescribed successful completion of training because his lack of motivation to improve and adjust had rendered his overall performance unsatisfactory.

5.  On 15 July 1976, the applicant acknowledged notification of his pending separation and proposed honorable discharge.  He indicated that if he did not have sufficient service, he understood that due to non-completion of requisite active duty time Veterans Administration and other benefits normally associated with completion of honorable active duty service would be affected.  He elected not to make a statement in his behalf.  He also elected not to have a separation medical examination if the discharge was approved.

6. On 23 July 1976, the intermediate commander recommended that the applicant be discharged.  He stated that he had personally interviewed the applicant and that he should be discharged from the service as an unproductive Soldier.

7.  Accordingly, the applicant was honorably discharged on 30 July 1976 under the provisions of Army Regulation 635-200, paragraph 5-39.  He completed
1 month and 27 days of creditable active service.



8.  There is no evidence of record which shows the applicant was diagnosed with any medical condition prior to his discharge on 30 July 1976.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 5 provided for separation for the convenience of the Government.  The chapter stated, in pertinent part, that the Trainee Discharge Program provided that commanders could expeditiously discharge members who lacked the necessary motivation, discipline, ability, or aptitude to become a productive Soldier when they were voluntarily enlisted in the Regular Army, Army National Guard, or U.S. Army Reserve; or were in basic combat or advanced individual training, a service school, or on-the-job training prior to the award of the military occupational specialty (MOS) for which being trained and will have completed no more than 179 days active duty, or initial active duty for training, on current enlistment by the date of discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his honorable discharge should be changed to a medical discharge was carefully considered and determined to be without merit.

2.  There is no medical evidence of record that shows the applicant had any medical condition prior to his discharge on 30 July 1976.  There is also no evidence of record to show he was ever found to be medically unfit to perform his duties.  

3.  The applicant has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him was in error or unjust. Therefore, there is no basis for changing his honorable discharge to a medical discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____   DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.



      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080013748



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ABCMR Record of Proceedings (cont)                                         AR20080013748



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