BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20120000015 


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 his records to show he was credited with completion of 6 years of military service.

2.  The applicant states he was cheated out of his 6 years as a U.S. Army Soldier.  He contends that he finds discrepancies on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and that he did not do anything wrong.  He states that from the day he arrived for training, he had in mind that he was going to be a great combat engineer.  One day he was given a pass to use the telephone when he was confronted by three Caucasian males who called him a racial slur.  One of the Caucasian males slapped him – and something came over him and he feared for his life so he protected himself.  He was then taken to jail by the military police.

3.  The applicant states that upon his release from jail, his chain of command offered that he could restart basic training or receive an honorable discharge.  He contends that he did not know what was going on, but the honorable discharge sounded good.  He now is coming to understand that he may be eligible for benefits and the 6 years of pay he feels he was tricked into giving up.  He is seeking relief in the form of a correction of his DD Form 214 to show he served for 6 years.

4.  The applicant provides his DD Form 214.


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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 12 February 1980 for a period of 6 years.  He was discharged from the USAR DEP and enlisted in the Regular Army on 13 March 1980 for a period of 3 years.

3.  His official military personnel file contains several Trainee Discharge Program (TDP) Counseling Forms that indicate he was counseled on numerous occasions during the period 21 March-21 April 1980 for infractions that include lack of motivation, negative attitude, extreme gross conduct, bad temper, failure to follow instructions, total disrespect to other members of his unit, poor military bearing, disrespect towards superiors, and aggravated assault.

4.  On 16 April 1980, the applicant's immediate commander recommended his separation under the provisions of the TDP.  The commander stated he was making the recommendation for the applicant's own good and the good of those who served with him because he was extremely aggressive when it came to dealing with those who "rubbed him the wrong way."  The commander indicated the applicant was found to be a disciplinary problem by his platoon and he was then transferred to another platoon after an extensive counseling process.  Shortly after his arrival to his new platoon, he became involved in an argument with Soldiers from another company resulting in his striking one of the individuals in the head with a rock.

5.  On 16 April 1980, his company commander informed him he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-33, the TDP, with an honorable discharge.  The commander cited the applicant's poor self-discipline and explosive temper as the reasons for the proposed separation.  He was informed that due to non-completion of requisite active duty time, Veterans Administration and other benefits associated with completion of honorable active duty service would be affected.  He was also advised of his rights to present any rebuttal or statements in his own behalf and to request a separation physical if he felt his physical status had changed since his last examination.  On the same date, he acknowledged the proposed separation action.  He elected not to submit a statement in his own behalf.  He also elected not to undergo a medical examination prior to separation.

6.  On 29 April 1980, the separation authority approved the recommendation and directed the applicant's separation with his service characterized as honorable.  On 1 May 1980, he was discharged accordingly.  He completed 1 month and 19 days of active duty service.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  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 failed to respond to formal counseling.  The regulation essentially required that the service member must have voluntarily enlisted; must have been 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 his or her current enlistment by the date of separation.  The regulation provided that Soldiers could be separated when they demonstrated that they were not qualified for retention due to failure to adapt socially or emotionally to military life; could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or demonstrated character and behavior characteristics not compatible with satisfactory continued service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show he was credited with completion of 6 years of military service has been carefully reviewed.

2.  The evidence of record confirms he was discharged under the TDP due to disciplinary problems that appear to have started before the incident he described and his inability and/or refusal to adhere to the military way of life after completing 1 month and 19 days of active duty service.  The evidence also confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  There is no evidence showing he served on active duty beyond the 1 month and 19 days now shown on his DD Form 214.  The evidence does show he was properly discharged under the TDP in accordance with the governing regulations in effect at the time.  Therefore, there is no basis to correct his military records to show any additional active duty service credit.

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)                                         AR20120000015



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ABCMR Record of Proceedings (cont)                                         AR20120000015



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