BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110019717 


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, correction of the authority and reason for his discharge shown on his DD Form 214 (Report of Separation from Active Duty) so he may obtain Department of Veterans Affairs (VA) health benefits.

2.  The applicant states:

* the reasons for his discharge are all lies
* he was given a pill when he arrived at Fort Dix, NJ, for basic training and told it was for a swine flu epidemic
* he was admitted to the Fort Dix Army Hospital and treated for swine flu
* he was in critical condition and the floor was quarantined
* several people died
* the Army may be trying to hide the swine flu epidemic
* he did not receive a copy of his proposed discharge action until 15 August 2011

3.  The applicant provides his DD Form 214 and a letter from Company C, 2d Battalion, 3d Basic training Brigade, dated 11 March 1976, subject:  Proposed Discharge Action under the Provisions of Trainee Discharge Program (TDP).

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 records show he enlisted in the Regular Army on 1 March 1976 in pay grade E-1 for training and assignment as a tactical wire operations specialist.

3.  The applicant's service records contain a Training and Doctrine Command Form 871-R (TDP Counseling), dated 11 March 1976.  This form shows he was counseled for his behavior between 9 and 11 March 1976 as indicated:

* he stated if he were not discharged from the Army he would commit suicide
* he took an overdose of pills
* he was disrespectful to his unit commander
* he disobeyed a lawful order from his platoon sergeant
* he did not train
* he went to sick call every day after returning from the hospital

4.  The applicant was evaluated by the mental hygiene clinic and was determined not to have a mental or physical disorder.  The TDP counseling form further shows his unit commander recommended his discharge.

5.  On 11 March 1976, the applicant's commander notified the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-39 (TDP).  The specific reasons for the separation action cited by the unit commander were that the applicant:

* made no effort to train, learn, or improve
* desired to be discharged
* attended sick call continuously
* showed disrespect toward authority
* took pills to show suicidal tendencies
* made the training of others more difficult

6.  On 11 March 1976, the applicant acknowledged with his signature that he received the separation notification.  The applicant waived his right to have counsel assist him, indicated he did not desire to make statements or submit a rebuttal in his own behalf, and indicated he understood that under the provisions of the TDP he would be unable to reenter the U.S. Armed Forces for a period of 2 years from the date of his discharge.  The applicant also indicated he understood that due to non-completion of requisite active duty time, VA and other benefits normally associated with completion of honorable active duty service would be affected.

7.  On 16 March 1976, the separation authority approved the separation action.

8.  On 24 March 1976, the applicant was honorably discharged under the provisions of Headquarters, Department of the Army message, DAPE-MPE, dated 1 August 1973, by reason of TDP after completing 24 days of creditable active duty service.  He was assigned a separation program designator (SPD) code of JNF.

9.  There is no evidence in the available records which indicate the applicant's acts of indiscipline were the result of medical issues.

10.  There is no evidence in the available records which indicate the applicant was diagnosed and/or treated for swine flu during his military service.

11.  Headquarters, Department of the Army, message, DAPC-MPE, dated 1 August 1973, subject:  Evaluation and Discharge of Enlistees Before 180 Active Duty Days (TDP), provided the authority for discharge of enlisted personnel from the U.S. Army prior to the completion of their training for one (or more) of the following reasons:  could/would not adapt; could not meet training standards; did not meet moral, mental, or physical standards; or character and behavior disorders.  An honorable discharge was authorized for members separating under this provision.

12.  Army Regulation 635-5-1 (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 version in effect at the time prescribed SPD code JNF as the appropriate code to assign to enlisted Soldiers discharged under the provisions of Headquarters, Department of the Army message, DAPC-MPE, dated 1 August 1973, subject:  TDP.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the reason for his discharge changed to obtain VA benefits was carefully considered and determined to be without merit.  Furthermore, records are not corrected solely for the purpose of establishing eligibility for benefits.

2.  The applicant demonstrated a complete inability to adapt or meet training standards needed to be a Soldier and demonstrated character and behavior characteristics not compatible with satisfactory continued service.  He received an honorable discharge under the TDP.

3.  The applicant contends he was admitted to the Fort Dix Army Hospital and was in critical condition with swine flu.  However, there is no evidence in the applicant's medical records to show he was admitted and treated for swine flu.

4.  The applicant's administrative separation is presumed to have been accomplished in accordance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

6.  Based on the foregoing, there is no basis for granting 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 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)                                         AR20110019717



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ABCMR Record of Proceedings (cont)                                         AR20110019717



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