IN THE CASE OF:	  

		BOARD DATE:	    30 July 2013

		DOCKET NUMBER:  AR20130000461 


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 his DD Form 214 (Report of Separation from Active Duty) to show the reason for his discharge as medical.

2.  The applicant states he wants his honorable discharge to be due to a physical disability because he was not informed about the severity of his neck injury.

3.  The applicant provides copies of:

* DD Form 214
* Department of Veterans Affairs Rating Decision, dated 23 June 2005

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.  On 19 September 1974, the applicant enlisted in the Regular Army.  He was enrolled in the Basic Combat Training Course at Fort Jackson, SC.

3.  Fort Jackson Form 8 (Evaluation for Discharge for Enlistees before 180 Active Duty Days), dated 24 October 1974, reports the following:

	a.  The applicant shirks his duties, hides from his squad leaders while the squad is pulling details and cannot cooperate with his squad leader or his peers.

	b.  On 11 October 1974, he was counseled concerning his difficulties in working with the trainees of his platoon.  He is always hard to find when there is work to be done.  He is a disruptive influence upon the platoon.

	c.  The applicant is an extremely immature young trainee who is always right and everyone else is wrong.  He has an excuse for everything.  He cannot or will not work with his peers.  He feels they are hassling him when he is not pulling his fair load.  He cannot keep up with his field gear, and is constantly misplacing it.  He is selfish, lazy, irresponsible, and has no self-discipline.

	d.  He was counseled on 17 and 22 October 1974, to no avail.  He will not admit his error and is therefore incapable of rehabilitation.

4.  On 24 October 1974, the commander initiated action to separate the applicant under the trainee discharge program (TDP).  The reasons cited were his immaturity, lack of self-discipline and poor attitude by refusing to be rehabilitated.

5.  On 24 October 1974, the applicant acknowledged the discharge notification.  He did not desire to make a statement or submit any rebuttal in his behalf.  He desired to have a separation medical examination.

6.  On 1 November 1974, the appropriate authority approved the applicant's separation under the TDP.  He directed the applicant's discharge under the provisions of Department of the Army Message 011510Z, August 1973.  He was to be furnished a DD Form 256A (Honorable Discharge Certificate).

7.  On 7 November 1974, the applicant requested an explanation of the narrative reason for his separation.  He was informed the narrative reason for his discharge was miscellaneous general (Trainee Discharge Program), under the authority cited in the preceding paragraph, and that he would receive a reenlistment code of RE-3.

8.  On 7 November 1974, the applicant was discharged with an honorable characterization of service.  He completed 1 month and 19 days of creditable active duty service.  The reason and authority for discharge reflected on his DD Form 214 is “DA MSG DAPE-MPE 011510Z AUG 73 SPD JNF.”

9.  The applicant's service medical records are not available for review.

10.  The VA Rating Decision, dated 23 June 2005, as provided by the applicant, shows:

	a.  he was granted entitlement to individual un-employability effective 
31 January 2005 with service connection for headaches;

	b.  he was granted basic eligibility to dependents' educational assistance effective 31 January 2005; and

	c.  his claim for entitlement to compensation due to depressive disorder was deferred pending a VA examination and medical opinion.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-33 of this regulation 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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant failed to meet the minimum standards for successful completion of training due to his immaturity, lack of self-discipline and poor attitude by refusing to be rehabilitated.  Therefore, he was separated under the TDP.

2.  The record shows his separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He received an honorable characterization of service.

3.  The applicant's implied contention that his unsuccessful performance was due to a physical disability is not supported by any evidence of record.  Furthermore, the applicant has not provided any documentary evidence showing he had any untreated or on-going medical conditions at the time of his discharge.

4.  While the VA Rating Decision provided by the applicant clearly shows that he suffers from physical and mental conditions, it does not sufficiently show that any of these conditions existed at the time of his service.  Even though he has received service connection for his headaches, there is no evidence showing that he had this condition at the time of his discharge, or that it rose to the level of unfitness.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20130000461





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ABCMR Record of Proceedings (cont)                                         AR20130000461



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