IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100013606 


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, in effect, the separation program designator (SPD) code shown on his DD Form 214 (Report of Separation from Active Duty) with an effective date of 22 December 1977 be changed to reflect a positive situation so he can get his benefits.

2.  The applicant states the military knew he was a mental patient before he was sworn in, but later said he was non-productive.

3.  The applicant provides copies of:

* his letter from the Office of Disability and International Operations, dated 28 October 1997
* a letter from Dr. E____, dated 29 March 1999
* his psychiatric evaluation by Dr. H____, dated 19 July 1999
* progress notes from Dr. H____, dated from 19 October 1999 to 9 June 2003
* lab results, dated from 26 October 1999 to 15 April 2003
* his social security statement, dated 31 July 2003
* his letter from the Department of Veterans Affairs, dated 31 October 2003
* his claim to the Department of Veterans Affairs for damage, injury, or death, dated 3 September 2009


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 personnel records show he enlisted in the Regular Army on 29 November 1977 at 24 years of age.

3.  The applicant completed a DD Form 1966 (Application for Enlistment - Armed Forces of the United States) on 8 November 1977.  Item 37e asks the question, "Have you ever been a patient (whether or not formally committed) in any institution primarily devoted to the treatment of mental, nervous, emotional, psychological, or personality disorders?"  The applicant checked the "NO" block to this question.

4.  On 15 December 1977, the applicant's commander notified him he was initiating action to discharge him from the U.S. Army.  The reasons given by the commander were that the applicant:

* could not or would not adapt socially or emotionally to military life
* could not meet the minimum standards prescribed for successful completion of training because of a lack of motivation
* had demonstrated character and behavioral characteristics not satisfactory with continued service

5.  The applicant acknowledged the notification of his proposed discharge and stated that he:

* did not desire to make a statement or submit a rebuttal in his behalf
* did not wish to have a final type physical examination

6.  On 15 December 1977, the applicant's commander recommended him for discharge.  The commander stated the applicant was immature and unable to cope with the training, discipline, and pressures inherent to basic training.  He lacked motivation and failed to respond to counseling and assistance.  He had been given every opportunity to straighten up and improve himself, but to no avail.  He was an extremely poor candidate for successful completion of basic training and should be discharged immediately.

7.  On 16 December 1977, the applicant's battalion commander stated the applicant had developed a reputation as an inconsistent performer whose mood and response to directives changed constantly.  The applicant stated that he had been hospitalized in mental institutions on two occasions.  The commander stated that he should be released as soon as possible due to his inability to adjust to military life.

8.  On 19 December 1977, the appropriate authority approved the applicant's discharge under the Trainee Discharge Program and directed that he be furnished an Honorable Discharge Certificate.

9.  On 22 December 1977, the applicant was discharged.  He had completed 24 days of active service that was characterized as honorable.  The authority for his discharge was paragraph 5-39 of Army Regulation 635-200 (Personnel Separations).  He was assigned the SPD code of JEM.

10.  All the documents submitted by the applicant are dated 20 or more years after his discharge.  The psychiatric evaluation and progress notes from Dr. H____ clearly show his diagnosis and treatment for schizophrenia.  However, the diagnosis was made almost 22 years after his discharge.

11.  Army Regulation 635-5-1 (SPD Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation showed that the SPD code JEM, as shown on the applicant's DD Form 214, specified the narrative reason for discharge as "marginal or non-productive performance (Trainee Discharge Program)" and that the authority for discharge under this SPD code was paragraph 5-39 of Army Regulation 635-200.

12.  Army Regulation 635-200, in effect at the time, provided for 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 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 a military occupational specialty; and must not have completed more than 179 days of active service on his or her 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that the SPD code on his DD Form 214 should be changed to reflect a positive situation so he can receive veterans' benefits.  He contends the military knew he was a mental patient before he was sworn in.

2.  The applicant indicated on his application for enlistment that he had never been a patient in any institution primarily devoted to the treatment of mental, nervous, emotional, psychological, or personality disorders.  The battalion commander's statement wherein he mentioned the applicant stated he had been hospitalized in mental institutions on two occasions was the only mention of this in the entire record.  Therefore, there is no substantive evidence the military knew the applicant had been a mental patient before he enlisted.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The ABCMR does not change records solely for the purpose of establishing eligibility for benefits from another agency.

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 that 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)                                         AR20100013606



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013606



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1