IN THE CASE OF:	 

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090020484 


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 a reconsideration to have his Separation Program Designator (SPD) Code be upgraded and to receive disability compensation for a sleep disorder.

2.  The applicant states that he had a sleep disorder which was not treated while on active duty and it is this condition that led to the actions resulting in his discharge.  He is currently receiving Social Security benefits due to being unemployable.

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) and a seven page 22 November 2009 Department of Veterans Affairs (VA) Progress Note.

CONSIDERATION OF EVIDENCE:

1. The applicant's request for disability compensation constitutes a new issue and the VA record is considered new evidence submitted within one year of the ABCMR’s original decision.   

2.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2009000629, on 26 August 2009.


3.  The applicant originally requested that his discharge be upgraded, stating that he did not understand the reason for giving him "the code."  He did not know that the discharge was bad.  The Board reviewed the application under the determination that the applicant was requesting a correction to his separation program designator (SPD).  It was determined that there was insufficient evidence to warrant correction of the record.

4.  The applicant's service medical records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

5.  The applicant enlisted in the Regular Army on 30 October 1978.

6.  His record contains eight counseling forms which are directly related to his discharge as follows:

	a.  5 February 1979, for sleeping in class.

	b.  6 February 1979, for sleeping in class and for working lessons out of sequence.

	c.  8 February 1979, for failure to make progress in class, sleeping in class, and not making an honest effort.

	d.  9 February 1979, for scoring very low in a test.  The applicant blamed the low test results on an inability to stay awake during the test.

	e.  9 February 1979, the training supervisor wrote a student counseling report for delivery to the applicant’s unit commander.  In this report, the training supervisor stated that the applicant was failing to make any further effort to learn in the course.  He had not attained the minimum qualification in typing and was deficient in International Morse Code.  He was not demonstrating progress in his training.  The training supervisor recommended that consideration be given to reclassifying the applicant from the military occupational specialty (MOS) in which he was being trained.  His present attitude in refusing to make a reasonable effort to learn indicated that retention for continued training would serve no purpose and was not in the best interests of the Army.

	f.  9 February 1979, for showing a negative attitude and for being inattentive.

	g.  12 February 1979, for having been removed from his MOS course for not trying.

	h.  15 February 1979, a counseling report was written on the applicant for being completely unmotivated toward the Army.  The applicant stated he had family problems at home and needed to be at home to help raise his 16-year old brother.  He also stated that he did not want to be in the Army and only wished to go home.  The counselor opined that he had a poor attitude and he was just using his family's problems as an excuse to leave the service.  The counselor stated the applicant was of no value to the Army with his current attitude.

7.  On 28 February 1979, the battalion commander met with the service member (SM) to determine if the applicant should be recommended for discharge under the Trainee Discharge Program (TDP).  The  battalion commander prepared a TRADOC Form 871-R (TDP Counseling) to document the results of a meeting/interview.  Following their meeting, the battalion commander wrote that the SM was interviewed and he did not have the desire or motivation to become a productive Soldier.  The SM was failing his MOS course and did not qualify for reclassification due to low aptitude area scores.  Additional efforts with the SM would be a waste of Army resources.  He recommended approval of the applicant’s discharge under the TDP.

8.  On 8 March 1979, the applicant was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-33, (Trainee Discharge Program) because he could not meet the minimum standards prescribed for successful completion of training due to a lack of aptitude, ability, motivation, or self- discipline. 

9.  His DD Form 214 shows he had 4 months and 8 days creditable service with no time lost.  He was given an SPD of "JET" and the military occupational specialty (MOS) reflected on his DD Form 214 is 05C00 (Basic Trainee), indicating he had not completed training for award of an MOS.

10.  On 26 August 2009 the ABCMR reviewed the applicant's initial application and found insufficient evidence to afford him a correction of his SPD.

11.  The VA Progress Note shows a history of a seizure disorder, degenerative disc disease, psychosis, post traumatic stress disorder and depression.  The reported reason for the visit was a complaint of daytime drowsiness and sleeping to much during the day.  He was counseled on the effects of the various medication he was taking for his problems but no additional diagnoses were reported.  The applicant is described as having been on an "atypical antipsychotic regiment" for at least one year.  The Progress Note does not mention a diagnosis of a sleep disorder.

12.  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.  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.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities and reasons for separating Soldiers from active duty, and the separation program designator (SPD) codes to be entered on the DD Form 214.  SPD codes are three-character alphabetic combinations that 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 Department of Defense (DOD) and the military services to assist in the collection and analysis of separation data.  This analysis may, in turn, influence changes in separation policy.  The SPD Code “JET,” is used for separation for entry level status performance and conduct.

14.  Army Regulation 635-40 ( Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

15.  Army Regulation 635-40, paragraph 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

16.  Army Regulation 635-40, paragraph B-10, provides that conditions that existed prior to entry into the service (EPTS) frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.

17.  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 Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins 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 applicant states that he had a sleep disorder which was not treated while on active duty and it is this condition that led to the actions resulting in his discharge.  He is currently receiving Social Security benefits due to being unemployable.

2.  While the applicant 's record shows he had trouble staying awake in class, there are any number of reasons for this problem.  The main reason for the discharge described in the separation process was his attitude and self professed desire for discharge.

3.  The record does not contain and the applicant has not provided any evidence that he was or is suffering from a sleep disorder.

4.  Further, had the applicant been diagnosed with a sleep disorder it clearly would have existed prior to service and could not have been shown to have been aggravated by his limited period of service.

5.  Additionally, any diagnosis of such a disorder at this time is too far removed from his 1978-1979 period of service to even infer any direct correlation to any problem he had  while on active duty.

6.  The applicant's contention that the military should have known he had a medical problem and treated him for the condition, for which he did not request a medical evaluation or treatment, is without merit.  

7.  The applicant's military service is not shown to have been interrupted due to a physical disability incurred or aggravated in service but as a result of his inability to complete his training.

8.  The applicant’s administrative separation was accomplished in compliance with applicable regulation with no indication of procedural error which would tend to jeopardize his rights.

9.  The type of discharge directed and the reasons for separation and the associated SPD are appropriate considering all the facts of the case.

10.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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:

1.  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 to amend the decision of the ABCMR set forth in Docket Number Docket Number AR2009000629, dated 26 August 2009 on the issue of a correction of the SPD code.

2.  Further, the evidence presented does not demonstrate the existence of a probable error or injustice on the issue of a discharge due to a physical disability. 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)                                         AR20090020484





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ABCMR Record of Proceedings (cont)                                         AR20090020484



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