BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120001265 


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 military personnel records to show:     	

* his rank and pay grade as private first class (PFC)/E-3  
* the narrative reason for his discharge be changed to show a medical discharge instead of trainee discharge program (TDP) 
* he completed advance individual training (AIT) and was awarded military occupational specialty (MOS) 11B (Infantryman), and,
*  a service-connected injury while on active duty

2.  The applicant states he enlisted in the military at the rank of PFC because he has a college degree.  The applicant further states he was paid as a PFC.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 Regular Army on 13 January 1982 at the rank of PFC.  He did not complete AIT MOS 11B.

3.  His military personnel records reveal a disciplinary history that includes his acceptance of general counseling statements on the following dates:

* 9 April 1982, for behavior
* 18 April 1982, for motivation/attitude 
* 4 May 1982, for attitude/behavior
* 8 May 1982, for behavior
* 12 May 1982, for mental evaluation

4.  On 12 May 1982, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for stealing property of the Army/Air Force Exchange.  His punishment consisted of reduction to private (PV2)/E-2, forfeiture of $309.00 per month for two months, 30 days restriction to company area and chapel, and 30 days extra duty.

5.  On 12 May 1982, he applicant underwent a command-referred mental evaluation at the Community Mental Health Activity (CMHA) at Fort Gordon, GA by a military psychiatrist.  The military psychiatrist determined the applicant and the problems presented by him were not, in the opinion of the examiner, amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.  The military psychiatrist indicated that it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would suceed and the applicant had the mental capacity to understand and participate in board proceedings.

6.  His additional disciplinary history includes his acceptance of general counseling statements on the following dates:

* 15 May 1982, for performance
* 17 May 1982, for behavior

7.  On 17 May 1982, the applicant's commander notified him that he was initiating action to discharge him under the provisions of paragraph 5-33, Army Regulation 635-200, the Trainee Discharge Program.  The commander stated that the reason for the proposed action was the applicant demonstrated character and behavior characteristics not compatible with satisfactory continued service.

8.  The commander advised the applicant that, if approved, his discharge would be characterized as honorable.  However, if he does not have sufficient prior military service, veterans benefits normally associated with completion of honorable active duty service will be affected.  Furthermore, he would not be permitted to reenlist in the U.S. Army within 2 years from the date of his separation.

9.  The commander further advised the applicant of his right to submit statements in his own behalf, request a separation physical, to be assisted by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.

10.  On 17 May 1982, the applicant submitted a statement acknowledging that he had been advised by counsel of the reasons for separation and the rights available to him.  The applicant stated that he wanted to stay in the Army to demonstrate his abilities.

11.  On 2 June 1982, the appropriate authority approved the recommendation for discharge under the Trainee Discharge Program with an honorable discharge.

12.  There is no evidence that shows he was treated or diagnosed with any type of medical condition prior to his discharge sufficient to warrant disposition through medical channels.

13.  On 7 June 1982, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-33 with a character of service as honorable, by reason of "Trainee Discharge Program (TDP) Marginal or Nonproductive,” after completing 5 months and 7 days of creditable active duty service.  Item 4a (Grade, Rate or Rank) of his DD Form 214 shows the entry "PV2," item 4B (Pay Grade) shows the entry "E-2," and Item 11 (Primary Specialty, Number, Title and Years and Months in Specialty) shows the entry "11B00 Trainee 00 Yrs and 00 Mos."

14.  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 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 duty 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.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, or rank.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for a change in the reason for his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant enlisted in the military at the rank of PFC/E-3.  On 12 May 1982, he received an Article 15 and he was reduced to the rank of PV2/E-2.  Therefore, his military personnel records correctly show his rank as PV2/E-2.

3.  Evidence of record shows the applicant did not successfully complete AIT and he was not awarded an infantry MOS.  Therefore, he was not awarded MOS 11B.

4.  The applicant contends he should have been given a medical discharge.  The evidence of record shows he was administratively separated for TDP.  There is no medical evidence of record that shows he treated or diagnosed with any type of medical condition prior to his discharge on 7 June 1982 that would have rendered him eligible for physical disability processing.  The military psychiatrist found no disqualifying mental or physical defects sufficient to warrant disposition through medical channels and the applicant had the mental capacity to understand and participate in board proceedings.

5.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 
6.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

7.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20120001265





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ABCMR Record of Proceedings (cont)                                         AR20120001265



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