IN THE CASE OF: BOARD DATE: 1 September 2011 DOCKET NUMBER: AR20110003116 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 the narrative reason for separation and the reentry eligibility (RE) code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. He states that "marginal or non-productive" is listed as the narrative reason for his separation on his DD Form 214, but this form should reflect that his discharge was recommended by a psychiatrist. He explains he was productive, qualified on all weapons ranges, had good military bearing, was physically fit, and obeyed all orders given by his superiors prior to the incident with his platoon sergeant and his subsequent discharge. 3. He does not provide any 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 Regular Army on 27 October 1981. 3. His records contain a counseling statement from his platoon sergeant, dated 5 January 1982, showing he was counseled as follows: * 4 January 1982 – request for discharge under the Trainee Discharge Program (TDP) * 5 January 1982 – missing from appointed place of duty (1200 to 1600, 4 January 1982) * 5 January 1982 – poor performance * 5 January 1982 – general counseling by company commander * 5 January 1982 – missing from appointed place of duty from 1215 to 1530, 5 January 1982 * 5 January 1982 – recommendation to company commander for TDP 4. On 7 January 1982, he underwent a psychiatric evaluation. The psychiatrist stated the applicant was referred to the Community Mental Health Activity by the emergency room. He complained of an inability to cope with military life and a desire to be discharged from the service. The evaluation reported he was alert and fully oriented. His thought and memory processes were grossly intact. His speech was fluid and coherent. His intelligence appeared to be within the normal limits and his affect was appropriate to his thought content. The psychiatrist found the applicant presented indications of being impulsive, immature, and over-responsive to environmental pressures. He appeared to be undependable as a member of the military. The psychiatrist cleared the applicant for administrative action deemed appropriate by command. 5. On 7 January 1982, his immediate commander notified him of his intent to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-33 (TDP). The commander stated the applicant's lack of motivation and desire to complete basic training were the specific reasons for the discharge action. 6. The commander informed him that the final decision in his case rested with the approving authority. If his separation were approved, his service would be characterized as honorable. However, if he did not have sufficient prior military service, he should understand that due to noncompletion of requisite active duty time, Veterans Administration and other benefits normally associated with completion of honorable active duty service would be affected. Furthermore, he would not be permitted to reenter the U.S. Army within 2 years from the date of his separation. 7. The commander advised him of his rights to present any rebuttal or statement in his own behalf to the approving authority and to request a separation physical if he felt his physical status had changed since his last examination. 8. On 7 January 1982, the applicant acknowledged receipt of the commander's notification of intent to separate him under the provisions of the TDP and the possible effects of a separation of this nature. He initialed the form electing to submit a statement in his own behalf, but a copy of his statement was not contained in his records. 9. On 18 January 1982, he was discharged. The DD Form 214 he was issued at the time confirms he completed a total of 2 months and 22 days of creditable active military service. Item 24 shows his characterization of service as honorable. Item 25 (Separation Authority) lists paragraph 5-33f(2), Army Regulation 635-200. Item 26 shows a separation program designator (SPD) code of JET, item 27 shows an RE code of 3, and item 28 shows the narrative reason for separation as "marginal or non-productive." 10. Army Regulation 635-200, then in effect, provided that commanders could expeditiously discharge members who lacked the necessary motivation, discipline, ability, or aptitude to become a productive Soldier when these individuals were in basic combat training or basic training or military occupational specialty (MOS) training in advanced individual training, a service school, or on-the-job training prior to award of the MOS for which being trained and would have completed no more than 179 days of active duty or initial active duty for training on the current enlistment by the date of separation. 11. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. RE-1 permits immediate reenlistment if all other criteria are met. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment. 12. Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214. This regulation provides that the SPD code of JET applies to persons discharged under the TDP as "marginal or non-productive." 13. The SPD/RE Code Cross Reference Table states that when the SPD code of JET is assigned, an RE code of 3 will be assigned. DISCUSSION AND CONCLUSIONS: 1. The available evidence shows the applicant was discharged under the TDP. The commander listed his lack of motivation and desire to complete basic training as justification for the discharge action. The evidence of record further shows the applicant underwent a psychiatric evaluation prior to his discharge in which he was cleared for any administrative action deemed appropriate by the command. 2. Based on his service of less than 179 days of active duty, he was given a discharge under the TDP. As cited in the regulation, he was appropriately assigned an SPD code of JET for a discharge under the TDP with an RE code of 3 and a narrative reason of "marginal or nonproductive" which is consistent with the information cited in the above regulation. There is no requirement to show he was recommended for discharge by the psychiatrist on his DD Form 214. Therefore, the narrative reason for separation and his RE code are correct as constituted. 3. In view of the foregoing, there is no basis for granting his request. 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 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) AR20110003116 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110003116 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1