BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090016512 


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 his discharge be changed from an honorable discharge under the trainee discharge program (TDP) to a medical discharge.

2.  The applicant states that his battery commander told him that he was given a "medical honorable discharge," but his discharge packet does not reflect a medical under honorable conditions discharge.

3.  The applicant did not submit any additional documentation in support of this 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's records show he enlisted in the Regular Army on 3 April 1979.
3.  On 14 April 1979, the applicant was counseled by his platoon sergeant regarding his negative attitude toward military life.  The counseling statement shows he is awaiting an evaluation for an operation he does not want and that he is having financial problems at home.

4.  Between 14 and 16 April 1979, the applicant was counseled by his platoon sergeant for not lacing his boots up, taking his time placing his boots around his neck as punishment for not lacing them up, his lack of motivation, his lackadaisical attitude, being 30 minutes late for wake-up, not making up his bunk, and disobeying sick call procedures.

5.  On 27 April 1979, the applicant underwent a mental status evaluation wherein he stated that he was having difficulty adjusting to military service and that he did not want to complete his enlistment.  The military physician stated that there was no evidence of any primary psychiatric disorder; however, the applicant did not appear to have the emotional stability or self-discipline to become a productive Soldier.  He was found to be free of any psychosis or severe neurosis that would preclude administrative separation or any other administrative actions deemed necessary by the commander.

6.  On 3 May 1979, the applicant accepted nonjudicial punishment for leaving his locker unsecure.

7.  On 3 May 1979, the applicant's immediate commander advised the applicant that he intended to recommend him for discharge from the Army under the provisions of paragraph 5-33 (TDP) of Army Regulation 635-200 (Personnel Separations).  The specific reason for the recommendation was that the commander was convinced that the applicant was not mature or motivated enough to remain in the Army.

8.  On the same date, the applicant acknowledged notification of his proposed discharge and was advised of the basis for the contemplated separation from the Army under the provisions of paragraph 5-33 of Army Regulation 635-200, the effect on future enlistment in the Army, and of the procedures and rights that were available to him.  He acknowledged that if he did not have sufficient prior 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 service would be affected.  He further elected not to submit a statement on his own behalf and elected not to have a separation medical examination if his separation were approved.

9.  On 10 May 1979, the applicant's immediate commander recommended approval of the applicant's discharge.

10.  On 24 May 1979, the separation authority approved the applicant's discharge and directed that he receive an honorable discharge.  On 31 May 1979, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed "10" months and 28 days of creditable active military service.

11.  There is no indication in the available medical records that the applicant was treated for an injury or an illness that would have warranted his entry into the Physical Disability Evaluation System (PDES).  Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEBD) or a physical evaluation board (PEB).

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-33 of the 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 had failed to respond to formal counseling.  The regulation essentially required 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 an MOS; and must not have completed of 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.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. 
The regulation in effect at the time established SPD code "JEM" as the appropriate code to assign to Soldiers who were separated under the provisions of paragraph 5-33, Army Regulation 635-200, and established the narrative reason for separation for these members as "Army Trainee Discharge."

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEBD's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the reason for his separation should be changed to medical discharge.

2.  There is no evidence in the applicant's records and the applicant did not provide any evidence that shows he sustained an injury and/or suffered from an illness that would have warranted his entry into the PDES.  Also, there is no evidence to suggest he suffered from a medical condition that would have disqualified him for retention or separation.

3.  In accordance with the regulation in effect at the time, the narrative reason for separation for members separated under the provisions of paragraph 5-33 of Army Regulation 635-200 was TDP.  Thus, there appears to be no error or injustice related to this entry.

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 this requirement.  Therefore, he is not entitled to the requested relief.

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)                                         AR20090016512



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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