IN THE CASE OF:	  

		BOARD DATE:  4 September 2012

		DOCKET NUMBER:  AR20120002718 


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 DD Form 214 (Report of Separation from Active Duty) to show he qualified sharpshooter with the M-16 rifle, hand grenade, and .45 caliber pistol.

2.  He also requests an audience with the President of the United States or a Congressional hearing to correct his record and compensation for unjust treatment.

3.  He states he was unjustly discharged from the Army because he did not qualify with his weapons; however, he found his training record in his U.S. Navy medical records showing he did qualify with his weapons.  Therefore, he should not have been discharged from the Army under the Trainee Discharge Program.  He attempted to inform others that he did qualify but nobody listened.

4.  He provides a copy of page 2 of a Navy Personnel (NAVPER) Form 1070/604 (Enlisted Qualification History).

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 requested the Sharpshooter Marksmanship Qualification Badge with Grenade Bar be added to his DD Form 214.  His DD Form 214 currently shows he was awarded the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant enlisted in the Regular Army on 7 June 1979.  He did not complete initial entry training; therefore, he was not awarded a military occupational specialty (MOS).

4.  Item 9 (Awards, Decorations and Campaigns) of his DA Form 2-1 (Personnel Qualification Record) does not show he qualified with the M-16 rifle or the
.45 caliber pistol.

5.  His record contains five Fort McClellan (AL) Forms 1068-R (Record Fire Performance Test Sheet) dated between June and July 1979.  These five forms attest to his failing to qualify on all five attempts.

6.  A Training and Doctrine Command (TRADOC) Form 871-R (Trainee Discharge Program (TDP) Counseling) counseling record shows the applicant was counseled for failing to qualify with the M-16 rifle after three record fire attempts.  He was advised he would be given two additional attempts to qualify with the M-16 rifle after he received remedial training.  He was further counseled for his numerous visits to sick call.  The dispensary notified the unit the applicant had seen every individual at the hospital and that he was physically fit for duty.  The applicant was advised the results of his medical board determined he was fit for military duty and that his problem seemed to be motivational.  The applicant stated he did not want to be recycled and then admitted that he did not want to be in the Army.

7.  On 30 July 1979, his commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-33 (TDP).  The specific reasons for the proposed action were that the applicant failed to qualify with the Army's 


basic weapon after five record fire attempts.  Additionally, the applicant's lack of motivation and excessive desire to be discharged had pervaded every aspect of his military training.  The applicant had continually used his physical problems as a crutch for his lack of motivation.  Any additional retraining or rehabilitative efforts were deemed inappropriate and the applicant should be discharged.

8.  On 31 July 1979, the applicant acknowledged notification of the proposed separation from the U.S. Army.  He elected not to have a counsel assist him in explaining the discharge procedures or in making statements or rebuttals in his own behalf.  He also elected to not submit a statement in his own behalf.

9.  On 6 August 1979, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-33, with issuance of an honorable discharge.

10.  The DD Form 214 he was issued at the time shows he was honorably discharged on 9 August 1979 under the provisions of Army Regulation 635-200, paragraph 5-33a.  He was assigned a separation program designator (SPD) code of JET.  He completed 2 months and 3 days of creditable active service.  This form does not show any marksmanship awards other than the aforementioned Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

11.  The applicant's record contains a memorandum issued by the U.S. Army Military Police School/Training Center, Fort McClellan, subject:  Reason for Separation [Applicant], dated 9 August 1979.  This memorandum states the reason for the applicant's separation from active duty was "marginal or non-productive performance."

12.  The applicant provides page 2 of a photocopy of a NAVPER Form 1070/604 that contains no identifying information to whom the record belongs.  It is also obvious that this form was altered in that item 11 (Decorations, Unit, and Marksmanship Awards) was overlayed onto this form from another form showing award of the Sharpshooter Marksmanship Qualification Badge for qualifying with the M-16 rifle, .45 caliber pistol, and the hand grenade at Fort McClellan on
14 July 1979.  Other entries on this form reflect the promotions of a navy member between December 1982 and May 1984.  It also shows training courses completed at a naval base in Bangor, WA between October 1983 and July 1984.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-33 provided that commanders could 


expeditiously separate members who lacked the necessary motivation, discipline, ability, or aptitude to become a productive Soldier when these individuals: 

	a.  Were voluntarily enlisted in the Regular Army, Army National Guard, or U.S. Army Reserve.

	b.  Were in basic or advanced individual training prior to the award of the MOS for which being trained and would have completed no more than 179 days of active duty or initial active duty for training on current the enlistment by the date of separation.

	c.  Have demonstrated that they were not qualified for retention for one or more of the following reasons:

		(1)  Could not or would not adapt socially or emotionally to military life, or

		(2)  Could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.

14.  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.  It states that the SPD code JET is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-33 by reason of the TDP for marginal or non-productive performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record contains five Fort McClellan Forms 1068-R showing he failed to qualify with the Army's basic weapon after five record fire attempts.  His DA Form 20 is void of entries indicating he qualified with the M-16 rifle or the
.45 caliber pistol.

2.  Although the applicant provides page 2 of a NAVPER Form 1070/604, this form was obviously altered and does not contain any information showing to whom this record belongs.  Therefore, there is an insufficient evidentiary basis for adding any additional marksmanship qualification badges to his DD Form 214.

3.  He further contends he was unjustly discharged for failing to qualify with his assigned weapons.  Although he claims he did qualify with the M-16 and


.45 caliber weapons, there is no corroborating evidence of record and he did not provide sufficient evidence to support his claim.  However, based on his DA Form 2-1 and the five Fort McClellan Forms 1068-R in his record, he clearly failed to qualify with the Army's basic weapon after five attempts.  The applicant could have been recycled for failing to qualify with the M-16 rifle if that were his only shortcoming.  However, the applicant's commander indicated he lacked motivation and excessive desire to be discharged pervaded every aspect of his military training.  Therefore, his record shows the reason for his discharge was for marginal or non-productive performance, which was beyond the scope of his failing to qualify with the Army's basic weapon.

4.  The evidence shows he was properly and equitably discharged in accordance with regulations in effect at the time.  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.

5.  Regarding the applicant's request for an audience with the President of the United States or a Congressional hearing to correct his record and compensation for unjust treatment, this issue is not within the purview of this Board	`

6.  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)                                         AR20120002718



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ABCMR Record of Proceedings (cont)                                         AR20120002718



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