ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 August 2019 DOCKET NUMBER: AR20160016267 APPLICANT REQUESTS: in effect, correction of the narrative reason for separation from Trainee Discharge Program (TDP) to something more beneficial. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Chronological Records of Medical Care * Operative Report (Hemorrhoidectomy) * Emergency Department Record FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his military status should be upgraded as he wished to receive some type of benefits for his time in the Army. He had a medical problem that kept him from all his duty. Upon discharge from the Army, he was not informed that he was eligible to receive medical care from the Department of Veterans Affairs (VA). He did receive medical care from numerous physicians in cities surrounding his residence. In the time that has passed, some of these doctors are now deceased with offices that have been closed. He has obtained records from hospitals and offices that he has been able to reach and are still serving patients. Those documents have been sent with this correspondence. 3. The applicant provides selected medical records and operative report related to his Hemorrhoidectomy following a diagnosis of external hemorrhoids at the 10 and 11 o’clock position with the patient prone. He tolerated the surgery and transferred to recovery in a satisfactory condition. 4. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army 6 July 1977. He was assigned to Fort Jackson, SC for training. b. On 11 August 1977, he accepted nonjudcial punishment under the provisions of Article 15 for dereliction in the performance of his duties (he had left his weapon unsecure). c. Throughout August 1977, he was counseled by the drill sergeants for a variety of infractions including poor performance, inability to perform drill and ceremonies, physical fitness, first aid, failing to qualify with assigned weapon, habitual security violations, inability to get along with peers, starting a fight in the barracks, lack of motivation, and overall inability to adapt to military environment. c. On 23 August 1977, the applicant's immediate commander advised the applicant that he intended to recommend his discharge from the Army under the provisions of paragraph 5-39 (TDP) of Army Regulation (AR) 635-200 (Personnel Separations). The specific reason for the recommendation was the applicant’s poor performance, lack of motivation, and inability to adapt to military life. The commander advised him of his rights. d. On 23 August 1977, the applicant acknowledged notification of his proposed discharge and was advised of the basis for the contemplated separation from the Army under the provisions of paragraph 5-39 of AR 635-200, the effect on future enlistment in the Army, and of the procedures and rights that were available to him. He acknowledged that: (1) He understood if he did not have sufficient prior service, I understood 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. (2) He understood he would not be permitted to reenlist in the Armed Forces within two years of his discharge. (3) He declined making a statement on his own behalf. (4) He declined having a separation physical. e. On 23 August 1977, the applicant's immediate commander recommended approval of the applicant's discharge and a waiver of additional counseling. f. On 24 August 1977, the applicant's intermediate commander interviewed the applicant and determined that his discharge was in the best interest of the Army. He stated that his recommendation was that the applicant should be discharged because the applicant stated he could not learn what he was expected to learn here. He had no ambition, pride or self-discipline. He was looking for an easy ride and is determined that he would not expend any effort to improve himself. g. On 26 August 1977, the separation authority approved the applicant's discharge and directed that he receive an honorable discharge. On 2 September 1977, the applicant was discharged accordingly. h. The DD Form 214 he was issued confirms he completed 1 month and 27 days of creditable active military service. Item 9c (Separation Code) of the applicant's DD Form 214 shows the entry "JEM," AR 635-200, Paragraph 5-39, Trainee Discharge Program. i. There is no evidence he applied to the Army Discharge Review Board for a review of his separation within that board’s 15-year statute of limitations. j. There is no indication in the available medical records that the applicant was treated for an injury or an illness that would have warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEBD) or a physical evaluation board (PEB). 5. A medical advisory opinion was received on 13 May 2019 from the Army Review Boards Agency senior medical advisor in the processing of this case. The medical advisor stated: a. Based on the available medical record, there is insufficient information to determine whether the applicant met procurement standards (rectal exam was not performed on initial Medical Examination). According to AR 40-501 (Standards of Medical Fitness), current Hemorrhoid (Internal or External), when large, symptomatic, or with history of bleeding within 60 days, does not meet standards for accession. However, the applicant met retention standards in accordance with AR 40-501 . There is no indication based on the record that Hemorrhoids led to his separation from the US Army due to poor performance. b. Based on the information currently available, it is the opinion of the Agency Medical Advisor that a referral of the applicant's record to IDES (integrated disability evaluation system) for consideration of military medical retirement is not indicated at this time. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 7. By regulation (AR 635-200), the TDP was a 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 required 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 an MOS and must not have completed of more than 179 days of active duty on the current enlistment by the date of separation. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions and the medical advisory opinion were carefully considered. Evidence of record shows the reason for separation was provided in accordance with regulatory guidance. However, regulatory guidance also shows he was entry level status and should have received an uncharacterized character of service instead of Honorable. The Board will not make a person worse off when considering relief, and determined there was no error or injustice with the listed reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations) governed the separation of enlisted personnel. The TDP was a 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 required 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 an MOS and must not have completed of more than 179 days of active duty on the current enlistment by the date of separation. 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. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The regulation in effect at the time established SPD code "JEM" as the appropriate code to assign Soldiers who were separated under the TDP. 4. AR 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 MEBDs, 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 MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016267 5 1