BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011263 


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 that the narrative reason for separation on her DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "Marginal or Non-Productive" to a more favorable reason. 

2.  The applicant states that during bivouac she collapsed and was transported to the hospital where she was confined for 4-7 days at which time she had the choice of being recycled or being separated under the trainee discharge program (TDP).  She adds that her issue does not require a lot of research or decision making; it is cut and dry.  The events leading to her discharge should be in her records.  

3.  The applicant provides her DD Form 214, dated 16 June 1982.

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 records show she enlisted in the Regular Army for a period of 4 years on 26 April 1982.  She was subsequently reassigned to Company A, 10th Military Police Company, Fort McClellan, AL, for completion of basic combat training and advanced individual training for military occupational specialty 95B (Military Police) under the one station unit training program.

3.  On 27 May 1982, the applicant was counseled by her drill sergeant for failure to qualify for basic rifle marksmanship (BRM) (first attempt).  The counseling statement shows she stated that she was nervous on her first attempt but should be able to qualify on the second attempt. 

4.  On 27 May 1982, after receiving corrective training, the applicant was again counseled by her drill sergeant for failure to qualify for BRM on her second attempt.

5.  On 4 June 1982, after receiving more corrective training, the applicant failed to qualify for BRM on her third attempt.  She was referred to her company commander. 

6.  On 7 June 1982, the applicant’s immediate commander counseled the applicant regarding her repeated failure to qualify with her assigned weapon.  The immediate commander indicated that she was given extensive training prior to her third attempt and that she continued to receive that training.  She indicated that the training she received was excellent and that she had no excuse for not qualifying.  

7.  On 7 June 1982, the applicant’s immediate commander advised the applicant that he intended to recommend that she be discharged from the Army under the provisions of paragraph 5-33f(2) TDP, Army Regulation 635-200 (Personnel Separations) by reason of failure to qualify with her assigned weapon after three attempts. 

8.  On 7 June 1982, the applicant acknowledged notification of her proposed discharge action and was advised of the basis for the contemplated separation from the Army under the provisions of paragraph 5-33f(2) of Army Regulation 635-200, the effect on future enlistment in the Army, and of the procedures and rights that were available to her.  She acknowledged she understood that if she did not have sufficient prior service veterans benefits normally associated with completion of honorable active service would be affected.  She waived her right to have counsel assist her in explaining the separation procedures and elected not to submit a statement on her own behalf.  She also elected not to have a separation medical examination if her separation was approved.  

9.  On 7 June 1982, the applicant’s immediate commander recommended approval of the applicant’s discharge and a waiver of additional counseling. 

10.  On 9 June 1982, the applicant’s intermediate commander recommended approval of the applicant’s discharge.  He further indicated that he interviewed the applicant and determined that her discharge was in the best interest of the Army.  She was afforded more than ample opportunity and individual training to ensure successful BRM qualification and that any additional effort to train her in BRM would have been a waste of training and personal resources as she was not the quality of individual sought by the Army.  He further stated that she had been an average to below average Soldier thus far in training; however, since her third failure, she had developed a negative attitude towards training and he did not feel she would be able to qualify even if she were recycled.  He concluded that recycling was not favorably considered based on her attitude and expressed doubts of ever qualifying with her assigned weapon. 

11.  On an unknown date between 9 and 16 June 1982, the separation authority approved the applicant's discharge and directed that she receive an honorable discharge.  On 16 June 1982, the applicant was discharged accordingly.  The DD Form 214 she was issued confirms she completed 1 month and 21 days of creditable active military service.  Item 26 (Separation Code) on the applicant’s DD Form 214 shows the entry "JET" and item 28 (Narrative Reason for Separations) shows the entry, "Marginal or Non-Productive."

12.  There is no evidence in the applicant's available medical records that show she was treated and/or confined at a hospital for any medical reason. 

13.  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, 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 duty on the 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.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  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) of Army Regulation 635-200 and established the narrative reason for separation for these members as "TDP Marginal or nonproductive."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the narrative reason for separation should be changed because she collapsed during bivouac and was transported to the hospital where she was confined for 4-7 days was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  There is no evidence in the applicant’s records and the applicant did not provide any evidence that shows her failure to qualify with her assigned weapon resulted from her collapse during bivouac or that she was treated and/or confined at a hospital for 4-7 days.  Further, the applicant declined to take a separation medical examination and there is no evidence to suggest she suffered from a medical condition that would have disqualified her for retention or separation.  

3.  The evidence of record shows that despite corrective training, the applicant failed to qualify with her assigned weapon on three separate occasions.  Accordingly, her immediate commander initiated separation action against her. 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.

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)                                         AR20090011263



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ABCMR Record of Proceedings (cont)                                         AR20090011263



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