RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 SEPTEMBER 2005 DOCKET NUMBER: AR20050001612 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mr. Jessie B. Strickland Analyst The following members, a quorum, were present: Mr. James Anderholm Chairperson Mr. Bernard Ingold Member Mr. Michael Flynn Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that the separation authority and narrative reason for separation on his report of separation (DD Form 214) be changed to ones that will allow him to receive benefits from the Department of Veteran Affairs (VA). 2. The applicant states that at the time, he was taken out of a psychiatric ward and was told that he could not be discharged unless he signed away his benefits. He was not all there, was not in his right mind and had had a nervous breakdown and tried to hurt himself. He goes on to state that he ended up trying to kill himself when he returned home. He continues by stating that his trouble started during the Iran Crisis while he was in basic training and he desires to obtain psychiatric and drug treatment from the VA. 3. The applicant provides no additional documents with his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 9 June 1980. The application submitted in this case is dated 21 January 2005. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. He enlisted in Los Angeles, California, on 24 April 1980, for a period of 3 years, under the combat army unit of choice option for assignment to the 4th Infantry Division. He was transferred to Fort Benning, Georgia, to undergo his one-station unit training (OSUT). 4. On 1 May 1980, while in basic combat training, he was counseled by his drill sergeant regarding his inability to do exercises, his lack of motivation towards doing exercises, his need to lose weight and his display of anger when he failed to complete a task. He was also counseled regarding his constant reply that he quit and that he could not do what was required of him. He was informed that he would receive help, however, he had to help himself first. 5. On 3 May 1980, his drill sergeant counseled him regarding his taking a swing at the senior squad leader and his lack of motivation to participate and complete training. He referred the counseling to the commander who determined that he would consider a trainee discharge after further observation. 6. On 9 May 1980, the drill sergeant counseled the applicant after the applicant had thrown his helmet liner at a lieutenant who was inquiring as to his condition after returning from sick call and was shouting profanities at the lieutenant and noncommissioned officers. 7. The applicant was counseled by the chaplain on 11 May 1980 who opined that the applicant had trouble adjusting to military life and that he was not in firm military condition to handle the tough hard-charging challenge of infantry training. 8. He underwent a psychiatric evaluation on 13 May 1980 and the examining official deemed his rehabilitative potential as being very poor, his motivation to train to be negative, that he was not amenable to mental health counseling, and that it was unlikely that he would become a productive soldier. He also opined that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right. He opined that the applicant was an immature individual with poor insight and judgment who used denial and rationalization. He cleared the applicant for any administrative action deemed appropriate by the command. 9. On 17 May 1980, the applicant’s commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-33 and the Trainee Discharge Program (TDP) due to his lack of desire, motivation, and physical ability to be a Soldier. He also stated that the applicant was extremely immature, did not handle pressure well and was subject to temper tantrums. 10. The applicant acknowledged he had been advised of his rights and waived all of his rights, to include the opportunity to submit a statement in his own behalf. 11. The battalion commander indicated that the applicant had attempted to commit suicide twice in the same day by attempting to jump from a moving vehicle and had to be restrained. He further indicated that the applicant’s immaturity, pathetic physical condition and suicidal tendencies were a liability and recommended immediate discharge. 12. On 4 June 1980, the appropriate authority approved the request for discharge and directed that he be furnished an honorable discharge. 13. Accordingly, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-33f (2) and the Trainee Discharge Program. He had served 1 month and 16 days of total active service. 14. A review of the available records shows that in 1996 the applicant was incarcerated in a State Prison and at the time he applied to this Board he was incarcerated in another State Prison. 15. There is no indication in the available records to show that he ever applied to the Army Discharge Review Board to have the reason for his separation changed within that board’s 15-year statute of limitations. 16. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 5 of that regulation provided, in pertinent part, for the separation of personnel for unsatisfactory performance or conduct (or both) while in an entry level status (less than 180 days of active service). This policy applied to individuals who have demonstrated that they are not qualified for retention because they cannot meet the minimum standards prescribed for successful completion of training and they lack the aptitude, ability, motivation or self-discipline for military service, or that they have demonstrated characteristics not compatible with satisfactory continued service. Personnel separated under that provision would have their service characterized as honorable or under honorable conditions. Under current standards, personnel separated in an entry level status will be separated with their service uncharacterized. DISCUSSION AND CONCLUSIONS: 1. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights. 2. The type of discharge directed and the reasons therefore were appropriate given the circumstances in the case. 3. The applicant’s contentions have been noted; however, they are not supported by the evidence of record. The applicant was counseled soon after his arrival at basic training regarding his lack of motivation towards training and he failed to respond to repeated counseling regarding his behavior, lack of motivation and failure to respond to rehabilitative efforts by the chain of command. Accordingly, the appropriate authority and narrative reason for his discharge were correctly entered on his DD Form 214 at the time of his discharge. 4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement 5. Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 June 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 June 1983 However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___JA___ ___BI ___ ___MF __ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. _____James Anderholm____ CHAIRPERSON INDEX CASE ID AR20050001612 SUFFIX RECON DATE BOARDED 20050922 TYPE OF DISCHARGE (HD) DATE OF DISCHARGE 19800609 DISCHARGE AUTHORITY AR 635-200, CH 5, PARA 5-33f(2) DISCHARGE REASON TDP-Nonproductive perfomance BOARD DECISION (DENY) REVIEW AUTHORITY AR 15-185 ISSUES 1.110.0200 191/RSN/AUTH 2. 3. 4. 5. 6.