IN THE CASE OF:	  

		BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090004914 


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 correction to her DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 18 January 1982.

2.  The applicant states, in effect, that her separation document should show "despite my desire to remain in the Army, I was unable to perform some basic training exercises due to injuries sustained during active duty."  She states that her military medical records should show that her injuries were to her right hand, right leg (knee and ankle), torn cartilage in chest and right arm, and an eye disease.  She states that her health is deteriorating and that, in effect, her injuries, that she incurred while on active duty, have created other health problems.  She concludes by stating that the Department of Veterans Affairs has denied her health care.   

3.  The applicant provides a copy of her DD Form 214 in support of her application to correct her record.

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's military records are not available at the National Archives and Records Administration.  The available record is the applicant's DD Form 214 that she submitted with her application. 

3.  The applicant's DD Form 214 shows that she enlisted in the State of Michigan Army National Guard (MIARNG).  She entered active duty on 4 November 1981 at Fort Leonard Wood, MO in a trainee status to attend basic training and advanced individual training.  

4.  Accordingly, on 18 January 1982, the applicant was honorably released from active duty and transferred to the MIARNG.  The DD Form 214 she was issued shows she completed 2 months and 15 days (or 75 days) of active duty service in a trainee status.  The separation authority sited is Army Regulation 635-200 (Personnel Separations), paragraph 5-33 and the corresponding narrative reason for her separation was Trainee Discharge Program as a marginal or non-productive trainee.  

5.  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 Soldiers who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or who had failed to respond to formal counseling.  This regulation essentially requires that the Soldier 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 enlistment by the date of separation.  This 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. 

6.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

7.  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 begin 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 evidence of record shows that the applicant was discharged due to marginal or non-productive performance under the provisions of the Trainee Discharge Program with only 75 days of active federal service.  

2.  The applicant contends, in effect, that her physical injuries, which she states she received during her initial active duty-training period, should be listed on her DD Form 214 so she can seek benefits from the VA.  The DD Form 214 is a record of her active duty service and medical injuries are not listed or identified on a DD Form 214.  Therefore, there is no justification to grant the applicant's request.  

3.  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.

4.  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.

5.  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 VA.



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)                                         AR20090004914



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ABCMR Record of Proceedings (cont)                                         AR20090004914



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