IN THE CASE OF: BOARD DATE: 23 March 2017 DOCKET NUMBER: AR20150017830 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 23 March 2017 DOCKET NUMBER: AR20150017830 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 23 March 2017 DOCKET NUMBER: AR20150017830 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 records to show he was discharged for medical reasons. 2. The applicant states the reason for his discharge should be changed based on his Department of Veterans Affairs (VA) medical records dated August 2007 and the VA’s determination that his medical issues are service-connected. 3. The applicant provides no additional evidence in support of his request. 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 29 July 1980. 3. The applicant accepted nonjudicial punishment on 11 August 1980 under the provisions of Article 15, Uniform Code of Military Justice, for being disrespectful in language toward his superior noncommissioned officer (NCO). 4. The applicant's record contains a counseling form provided by his platoon sergeant, dated 22 August 1980, which shows he displayed a very poor attitude toward his supervisor and peer group during the period 4-22 August 1980. He was a very immature and childish individual and showed no motivation to continue with his obligation of staying in the service. He talked back to NCOs, communicated threats, horse-played in formation, was a disruptive influence in the platoon, picked fights with platoon members, had no regard for his chain of command, and looked for ways to cause trouble. 5. The applicant's record includes documentation that shows he was counseled by his commander and first sergeant due to his negative attitude towards authority, disruptive behavior, lack of motivation, and lack of desire to adjust to military life. 6. The applicant's company commander informed him, on 26 August 1980, that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-33, Trainee Discharge Program (TDP), with an honorable discharge. a. The commander cited the applicant's lack of motivation and negative attitude as the reasons for the proposed separation. He was informed that due to non-completion of requisite active duty time, VA and other benefits associated with completion of honorable active duty service would be affected. b. The applicant was also advised of his rights to present any rebuttal or statements in his own behalf and to request a separation physical if he felt his physical status had changed since his last examination. On the same date, the applicant acknowledged the proposed separation action. He elected not to submit a statement in his own behalf. He also elected not to undergo a medical examination prior to separation. 7. The separation authority approved the commander's recommendation on 5 September 1980 and directed the applicant's separation an honorable service characterization. The applicant was discharged accordingly on 10 September 1980. He completed 1 month and 12 days of active duty service. 8. The applicant's record is void of medical documentation that shows he was unable to perform his military duties due to an unfitting medical condition or that he was deemed unfit for retention at the time of his discharge. 9. By letter dated 10 August 2016, the Army Review Boards Agency (ARBA) Case Management Division requested the applicant provide copies of his medical records and VA Rating Decision that listed his service-connected disabilities; however, the applicant failed to provide the requested documents. 10. During the processing of this case, a medical advisory opinion was obtained from the ARBA’s Senior Medical Advisor. The medical advisory opinion states that the applicant’s record is void of evidence that indicates the presence a behavioral health condition or any other medical conditions that warranted his processing through medical channels. 11. The advisory opinion was provided to the applicant to give him the opportunity to submit additional comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-33 of the regulation in effect at the time governed the TDP. It provided for the separation of service members who lacked the necessary motivation, discipline, ability, or aptitude to become productive Soldiers or who failed to respond to formal counseling. Service members must have: * voluntarily enlisted * been in basic, advanced individual, on-the-job, or service school training prior to award of a military occupational specialty * not have completed more than 179 days of active duty on their current enlistment by the date of separation Soldiers could be separated when they demonstrated that they: * were not qualified for retention due to failure to adapt socially or emotionally to military life * could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline * demonstrated character and behavior characteristics not compatible with satisfactory continued service 2. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. DISCUSSION: 1. The applicant contends he should have been medically separated based on a VA service-connected decision; however, he failed to provide documentary evidence substantiating his request. 2. Additionally, there is no medical evidence in his records that shows he had a disabling medical condition prior to his discharge or that he was ever found to be medically unfit to perform his military duties. 3. The evidence of record confirms his separation processing under the TDP was accomplished in accordance with the applicable regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017830 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017830 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2