IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140010098 


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:

* in item 28 (Mailing Address After Separation) the entry Paradise Valley, AZ, vice XXXX N. 40th Place, Phoenix, AZ
* that he was honorably discharged in May 1976 vice December 1975

2.  The applicant states: 

	a.  His DD Form 214 is completely false; he never signed a DD Form 214 and the address in item 28 should be Paradise Valley and not Phoenix.  He was still on active duty in January 1976 when he was involved in a motorcycle accident. He was taken to the Department of Veterans Affairs (VA) Medical Center in Phoenix, AZ.  They removed his uniform, identification (ID) tags, and his military ID card.  They have the records that show this.

	b.  He was supposed to report to the Army fort in Phoenix in the middle of January 1976; however, he had been hurt badly in the accident and had brain and right thigh surgery.  He was transferred from the VA hospital to the Good Samaritan Hospital, Phoenix, and that is where he had the surgeries.  After a long coma, he was released to his father and taken to his father's house in Paradise Valley.

	c.  In late May 1976, he received a call from the brigadier general (BG) in charge of his company at Fort Polk, LA.  The BG told him that he was going to give him an honorable discharge to help him in finding work after his leg had healed.  The BG did not say anything about the brain surgery.  He further stated that he (the applicant) had not been in a war so he wouldn't receive any Army benefits.

	d.  He enlisted in the Army in 1975 and had a legal contract.  His DD Form 214 is completely false as it shows he was discharged in December 1975 and has the wrong address on it.  He never signed the DD Form 214.

	e.  When he finished advanced individual training (AIT) at Fort Polk, LA, the BG met with him in early December 1975.  He was told that since the Vietnam War was on hold, he was changing his next assignment to Germany.  The BG ordered him to take a flight back to Phoenix and stated he would be active (i.e., on leave) during the holidays and to report to the Army fort in Phoenix in the middle of January 1976.  A staff sergeant drove him to the airport and he had his duffle bag with all his uniforms in it.  He was told to always wear his ID tags and always carry his military ID card.  He did as he was ordered and after the accident his life was ruined.  By law, as a Soldier, he should have been compensated, received back payments, and monthly deposits to his bank.

	f.  His statements can be proved by the records at the VA hospital and the Good Samaritan Hospital and he would take a lie detector test at any time.  Ms. AD, his girlfriend at the time, and his friend, Mr. DV, can also support his statements.  They both knew he was still a Soldier in January 1976.  He was messed up pretty bad for a long time.  After 15 years or so, his memory of what happened came back to him.  His rights as a Soldier were violated and his DD Form 214 is incorrect. 

3.  The applicant 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's records show he enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 14 August 1975.  He was discharged from the DEP on 1 September 1975.

3.  He enlisted in the Regular Army (RA) on 2 September 1975.  He completed basic combat training at Fort Jackson, SC, and was assigned for AIT to Company E, 1st Infantry Training Brigade, Fort Polk, on 3 November 1975.

4.  On 8 December 1975, he was notified by his immediate commander of the commander's intent to recommend him for immediate separation action under the provisions of Department of the Army (DA) Message (MSG) date/time group (DTG) 011510Z August 1973, subject:  Evaluation and Discharge of Enlistees Before 180 Active Duty Days (also known as the Trainee Discharge Program (TDP)), based on his failure to adjust to the demands of military life.  The commander stated he had been substandard in his appearance and duty performance, his immaturity and irresponsibility was not commensurate with what was required of a Soldier, and that all attempts to motivate him had failed.  He further stated if he was discharged under the provisions of DA MSG DTG 011510Z August 1973, he would be entitled to an honorable discharge.

5.  On 8 December 1975, the applicant acknowledged receipt of the notification of the proposed discharge from the Army.  On 9 December 1975, he was advised by legal counsel of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the procedures and rights that were available to him.

6.  In a statement the applicant submitted in his own behalf, dated 9 December 1975, he acknowledged the proposed discharge action presented to him and stated that as long as he received an honorable discharge he would be happy to accept it.  If possible, he hoped to be processed out of the Army immediately.

7.  On 12 December 1975, his senior commander recommended approval of the discharge action.

8.  On 15 December 1975, the separation authority approved his discharge under the provisions of DA MSG DTG 011510Z August 1973 and directed the issuance of an Honorable Discharge Certificate.  On 18 December 1975, he was discharged accordingly.

9.  The DD Form 214 he was issued shows he was honorably discharged on 18 December 1975 at Fort Polk, LA, while in a trainee status.  He completed 3 months and 17 days (or 107 days) of creditable active service.

10.  Item 28 of his DD Form 214 contains the entry 6XXXX N. 40th Place, Phoenix, AZ  85018 and item 29 (Signature of Person being Separated) shows a signature bearing the applicant's name on the DD Form 214.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  DA MSG DTG 011510Z August 1973, later incorporated into the regulation under paragraph 5-33, governed the TDP.  The TDP 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 required that service members must have voluntarily enlisted; must be in basic, AIT, 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 by the date of separation.  The regulation provided that service members may be separated when they had demonstrated they were not qualified for retention due to failure to adapt socially or emotionally to military life, or could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  The characterization of service for service members separated under this provision of regulation would be honorable.

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  Item 28 shows the mailing address after separation is provided by the Soldier.  This address must be a permanent address.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant enlisted in the RA on 2 September 1975 and was honorably discharged on 18 December 1975 under the TDP which is properly shown on his DD Form 214.  He authenticated the DD Form 214 by placing his signature in the proper block at the time of his discharge.  There is no evidence in his records and he did not provide any evidence that shows he served on active duty beyond his date of separation (18 December 1975).

2.  With respect to item 28 of his DD Form 214 to show his address as Paradise Valley, AZ, the entry pertaining to the mailing address after separation is provided by the Soldier to the official preparing the DD Form 214.  The applicant appears to have provided the permanent mailing address that is shown on his DD Form 214.

3.  The ABCMR is not an investigative body and can only decide cases on the evidence of record or evidence provided by an applicant.  Absent convincing, independent, and verifiable evidence to the contrary it is presumed that his mailing address was correct at the time.

4.  In view of the foregoing, the applicant is not entitled to 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)                                         AR20140010098





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ABCMR Record of Proceedings (cont)                                         AR20140010098



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