IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100001263 


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 of the type of separation on his DD Form 214 (Report of Separation from Active Duty) in order to become eligible for Department of Veterans Affairs (VA) benefits.

2.  The applicant states his discharge document shows his separation for relief from active duty for training (ADT).  He completed basic training and the ADT entry needs to be removed so he can receive VA benefits.

3.  The applicant provides a copy of his DD Form 214, dated 1 August 1978.

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 U.S. Army Reserve on 15 February 1978.  He was subsequently ordered to ADT at Fort Gordon, GA, on 2 March 1978 for basic combat and advanced individual training under the one-station unit training program.  He was assigned to Company C, 3rd Battalion, 1st Signal Training Brigade. 

3.  On 5 June 1978, he departed his training unit in an absent without leave (AWOL) status; however, he returned to military control on 1 July 1978.

4.  On 6 July 1978, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of military Justice for being AWOL from on or about 5 June 1978 to on or about 1 July 1978.  His punishment consisted of a forfeiture of pay and correctional custody.  He appealed his punishment and was granted partial relief in that his correctional custody punishment was vacated.

5.  On 10 July 1978, he was counseled by his unit commander and indicated that he desired a discharge.  He felt his AWOL status would foster his desire to return to civilian life.

6.  On 25 July 1978, he was counseled by his battalion commander regarding his inability to adjust to military life, bad attitude, and lack of motivation and maturity to become a good Soldier.

7.  On 25 July 1978, his immediate commander advised him that he intended to recommend that he be discharged from the Army under the provisions of paragraph 5-33 (Trainee Discharge Program (TDP)) of Army Regulation 635-200 (Personnel Separations) by reason of inability to adapt socially or emotionally to military life.  He had demonstrated character and behavior characteristics not compatible with satisfactory continued service.

8.  On 25 July 1978, he acknowledged notification of the proposed discharge action 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 he understood that if he did not have sufficient prior service, veterans' benefits normally associated with completion of honorable active service would be affected.  He 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 25 July 1978, the applicant's immediate commander recommended the applicant be discharged under the TDP.  He indicated that the applicant was hesitant about using his chain of command to resolve his problems and that he had been AWOL in an attempt to be discharged.  He lacked the maturity and motivation to become an Army asset.

10.  On 25 July 1978, his battalion commander recommended approval of the discharge.

11.  On 27 July 1978, the separation authority approved the applicant's discharge and directed that he receive an honorable discharge.  On 1 August 1978, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 4 months and 4 days of creditable active military service and he had 26 days of lost time.  Item 9a (Type of Separation) of this form shows "Relief from ADT and Discharge from Reserve of the Army" and item 9c (Authority for Separation) shows "Paragraph 5-33, Army Regulation 635-200, SPD [Separation Program Designator]:  JET."

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 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.

13.  Army Regulation 635-5-1 (SPD Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The regulation in effect at the time established SPD code JET as the appropriate code to assign to Soldiers who were separated under the provisions of paragraph 5-33 (TDP) of Army Regulation 635-200.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the type of separation shown on his DD Form 214 should be corrected in order for him to become eligible for VA benefits was carefully considered; however, there is insufficient evidence to support this request.

2.  The evidence of record shows the applicant demonstrated character and behavior characteristics not compatible with satisfactory continued service and an inability to adapt socially or emotionally to military life.  Accordingly, his immediate commander initiated separation action against him.  His 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.

3.  At the time he was ordered discharged, the applicant was a member of the U.S. Army Reserve on ADT.  In accordance with the regulation in effect at the time, the type of separation is correctly shown as relief from ADT and the reason for separation as paragraph 5-33, Army Regulation 635-200.  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. 

4.  With respect to the applicant's VA issues, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact that agency regarding entitlement to any benefits and/or any issues.

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)                                         AR20100001263



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ABCMR Record of Proceedings (cont)                                         AR20100001263



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