IN THE CASE OF:	  

		BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20140000981 


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 record to show he was medically discharged after having been found unfit for service under the Physical Disability Evaluation System (PDES).   

2.  The applicant states:

   a.  His problems started when a higher-ranking individual started to mess with him after formation.  He felt he was being harassed by him all the time and was a target from the day he walked through the door.  Lieutenant Colonel (LTC) SMT stated he was a wise punk, fast talker, with a chip on his shoulder.  He was told he had an attitude problem and he went to counseling and other rehabilitation efforts.  In a matter of months he was discharged because of his attitude.  

   b.  Since he did not serve enough active duty time, he is not allowed to file a claim for any of his disabilities with the Department of Veterans Affairs (VA).  He suffers from depression, sleep apnea, post-traumatic stress disorder (PTSD), and other mental issues for which he is being treated by a private physician.  He feels he was pushed to his limits by higher authority and not given a chance to prove he belonged in the U.S. Army Reserve (USAR).  He joined the USAR because he wanted to make something of himself; however, he never thought he would become a target. 




3.  The applicant provides:

* VA Form 21-22 (Appointment of Veterans Service Organization (VSO) as Claimant's Representative)
* Training and Doctrine Command (TRADOC) Form 871-R (Trainee Discharge Program (TDP) Counseling)
* 5 pages of TDP paperwork, dated 10 December 1979, subject: Proposed Discharge Action Under the Provisions of the TDP
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a member of a VSO as Counsel, she did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

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 USAR on 20 November 1979, and he entered active duty for basic training at Fort Jackson, SC, on 21 November 1979.

3.  On 10 December 1979, his company commander notified him of his intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph   5-33 (TDP).
   
   a.  His commander cited the applicant's proven unsuitability to be a productive Soldier by reason of unsatisfactory aptitude, attitude, self-discipline, and motivation, despite counseling and other forms of rehabilitation.

   b.  The applicant was advised of his rights, the separation procedures involved, and that he would be furnished an honorable discharge.

   c.  He was also advised that, if he did not have prior military service, due to non-completion of requisite active duty time VA and other benefits normally associated with completion of honorable active duty service would be affected.

4.  On 11 December 1979, he acknowledged with his signature that he had been notified of the basis for the contemplated separation action against him.  He indicated he did not desire to make statements or submit a rebuttal on his behalf, and he did not desire to have a separation medical examination.

5.  The company commander recommended approval of his separation under the TDP.  His intermediate (battalion) commander, LTC SMT, also recommended his discharge and stated, "I counseled [the applicant] on 11 December 1979 after he was released from the Military Adjustment Unit (MAU) as a disciplinary problem.  The first day he was at the MAU he got into a fight at the PX with a female trainee.  [The applicant] has been a trouble maker since he joined the Army.  My impression of him is that he is a wise punk, fast talker, and has a chip on his shoulder.  He argues with the Drill Sergeants and was arrested once for larceny but claims he did not commit the offense.  I strongly recommend that [the applicant] be discharged immediately before he causes more problems and embarrassment to the command.  He will never become a productive Soldier and will cause problems in any unit he is assigned."

6.  The separation authority approved the recommendation and directed the applicant be issued an Honorable Discharge Certificate.

7.  The applicant's DD Form 214 shows he entered active duty on
21 November 1979 and he was honorably discharged on 21 December 1979, under the provisions of Army Regulation 635-200, paragraph 5-33, with Separation Program Designator "JET" (TDP Marginal or Non-productive Performance).  He completed 1 month and 1 day of net active service.

8.  His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the PDES.  Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).

9.  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, on-the-job, or service school training prior to award of a military occupational specialty and must not have completed of more than 179 days of active duty on the 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.
 
10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his reason for separation should be changed to a medical discharge has been carefully examined; however, it was found to lack merit.

2.  There is no evidence in the applicant's records, and he did not provide any evidence, which shows he sustained an injury and/or suffered from an illness that would have warranted his entry into the PDES.  Further, he declined to take a separation medical examination and there is no evidence to suggest he suffered from a medical condition that would have disqualified him for retention or separation.

3.  The applicant was determined to be unsuitable to be a productive Soldier by reason of his unsatisfactory aptitude, attitude, self-discipline and motivation.  Accordingly, his chain of command initiated separation action against him.  His separation processing was accomplished in accordance with the applicable regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  In accordance with the regulation in effect at the time, the narrative reason for separation for members separated under the provisions of paragraph 5-33 of Army Regulation 635-200 was "TDP Marginal or Non-productive," as is recorded in item 28 (Narrative Reason for Separation) of his DD Form 214.  Thus, there appears to be no error or injustice related to this entry. 

5.  With respect to the applicant's VA issues, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact that agency regarding entitlement to any benefits and/or any issues.

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)                                         AR20140000981





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ABCMR Record of Proceedings (cont)                                         AR20140000981



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