IN THE CASE OF:
BOARD DATE: 24 July 2014
DOCKET NUMBER: AR20130021062
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, the type of separation, separation authority, and narrative reason for separation be removed from his DD Form 214 (Certificate of Release or Discharge from Active Duty).
2. The applicant states he is service-connected at 100% for head trauma (organic brain syndrome).
3. The applicant provides a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim).
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 5 September 1979 for a period of 4 years.
3. On 30 October 1979, he was notified of his pending discharge under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 5-33, under the Trainee Discharge Program (TDP) for being marginal or nonproductive. His unit commander cited:
a. he did not possess the language aptitude required to successfully complete basic training.
b. after attending the English as a Second Language School for 6 weeks, he still failed to demonstrate adequate proficiency in the English language.
4. On 31 October 1979, he acknowledged notification of his proposed honorable discharge from the Army. He elected not to make a statement in his own behalf.
5. On 21 November 1979, the separation authority approved the recommendation for separation and directed the issuance of an honorable discharge.
6. On 29 November 1979, he was discharged accordingly with an honorable discharge. He completed 2 months and 25 days of creditable active service.
7. His DD Form 214 shows in:
* Item 23 (Type of Separation) the entry "DISCHARGE"
* Item 25 (Separation Authority) the entry "PARA (Paragraph) 5-33f(2) AR (Army Regulation) 635-200
* Item 28 (Narrative Reason for Separation) the entry "TRAINEE DISCHARGE PROGRAM (TDP) MARGINAL OR NON-PRODUCTIVE
8. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. It stated the DD Form 214 was a synopsis of the Soldier's most recent period of continuous active duty. It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. It stated for:
* item 25, enter the regulatory or statutory authority cited in directives authorizing separation
* item 26, enter the proper separation program designator (SPD) representing the reason for separation under Army Regulation 635-5-1
* item 28, enter the reason for separation shown in Army Regulation
635-5-1 based on the regulatory or statutory authority
9. 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 5-33f(2), by reason of TDP marginal or nonproductive.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he is service-connected at 100% and his request to remove items 23, 25, and 28 of his DD Form 214 were noted. However, evidence shows he was discharged on 29 November 1979 under the provisions of Army Regulation 635-200, paragraph 5-33f(2), under the TDP for being marginal or nonproductive which is properly reflected in items 23, 25, and 28 on his DD Form 214.
2. There is no evidence to show that his type of separation, separation authority, and narrative reason for separation were not administratively correct and in conformance with applicable regulations at the time of his separation. Therefore, 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 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) AR20130021062
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130021062
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