IN THE CASE OF: BOARD DATE: 25 January 2022 DOCKET NUMBER: AR20210013476 APPLICANT REQUESTS: The applicant requests, in effect: * to change his discharge to a medical separation or discharge * to be awarded a military occupational specialty (MOS) * to be issued a Discharge Certificate APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-written statement 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: a. No discharge rating was provided for his service time in the Army. He has post- traumatic stress disorder (PTSD) feelings, ear ringing, cannot sleep, and needs medical assistance. He joined the Army and due to unforeseen reasons and an unfair commanding officer, he had to leave the Army the night prior to graduation and completing required training. He has been homeless and has medical issues since being separated from the Army with no real help. He needs health coverage and is requesting health care and help. He went to the Veterans Administration (VA) Hospital in Washington D.C. and could not be seen nor receive services. b. He would like to request a review and reclassification of his military service time and discharge. He joined the United States Army in 1980 and completed through the last day of Boot Camp, the night prior to graduation. However, there is no credit shown on his DD Form 214. He considers himself a Veteran of the United States Army/Military but has no real proof of it. He has been considered a homeless person for the past 30 plus years. Going from place to place to survive. He is in need of medical/health care and is requesting assistance from the VA. Again, he is requesting a reclassification of his military time served in order to seek medical care. c. He is also requesting a certificate of discharge that shows his status. This letter was prepared with the assistance of a volunteer, and he has confirmed the content. The address listed is a family member. 3. On 20 August 1980, the applicant enlisted in the Regular Army for a period of 3 years. His DD Form 214 and Personnel Qualification Record indicate he did not complete training requirements; therefore, he was not awarded an MOS. 4. On or about 4 September 1980, he was assigned to Fort Benning, GA, for One Station Unit Training (basic training and advanced individual training in MOS 11B (Infantryman)). 5. The applicant received multiple Trainee Discharge Program (TDP) counseling statements during the period of 28 August to 8 November 1980 for: * having no personal or medical problems; he was projected to be a good Soldier * not getting a haircut and shaving his head; shaving his head was a violation of policy and regulations, and resulted in the applicant getting a medical profile for 21 days of not wearing a steel pot causing him not to be able to participate in all of the training * refusing to cooperate with trainee chain of command; he would not cooperate and make corrections to his locker or help his squad with its area of responsibility * having a negative attitude and refusing to shave; he disobeyed an order to shave while preparing for inspection and was taken to the company commander for additional counseling 6. His record contained Orders 215-1 dated 4 November 1980, issued by Headquarters, 1st Infantry Training Brigade, Fort Benning, GA, awarding him MOS 11B1O, effective 20 November 1980. 7. On 13 November 1980, a Mental Status Evaluation shows the applicant’s behavior was normal and he was fully alert; he was fully oriented and his mood was unremarkable; his thinking process was clear, thought content normal and memory was good. The applicant met the retention requirements of chapter 3, Army Regulation (AR) 40-501 (Standards of Medical Fitness). The military medical officer also stated: * the applicant’s rehab potential was very poor * the applicant reported that he enlisted because he was frequently getting into trouble and he felt he needed to get away from his home environment * the applicant reported he could not adjust to the structure and discipline encountered in the Infantry Training Battalion * the applicant could present a significant liability to the service, and consideration for separation was strongly encouraged * the applicant presented little insight into the nature of his inability to be self- responsible; he was not amenable to counseling 8. The applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on 13 November 1980, for willfully disobeying a lawful order from a superior noncommissioned officer. He did not appeal. 9. On 17 and 18 November 1980, the applicant was counseled by his commander and first sergeant. In pertinent part, he was counseled for: * lack of motivation, defiance of authority, and being separated under the provisions of the TDP * lacking the motivation to successfully complete Infantry OSUT training and perform as a functional member of an infantry unit * lacking self-discipline and being a continuous source of dissension within his platoon * failing to respond to counseling and guidance 10. On 18 November 1980, a TDP counseling form shows the applicant was counseled by the Chaplain, and stated that he felt he could do the training but did not want to. The applicant said he made a big mistake in joining the Army, and had no desire to serve his contract and wanted out. The Chaplain recommended that he be discharged because of his lack of motivation and job dissatisfaction. 11. On 21 November 1980, the applicant was medically cleared for TDP separation action. 12. On 1 December 1980, the commander notified the applicant that he was initiating action to release him from active duty under the provisions of TDP, paragraph 5-33, AR 635-200 (Personnel Separations – Enlisted Personnel), for transfer to the Individual Ready Reserve (IRR). The specific reasons for the commander’s proposed action were based on the applicant’s demonstrated character and behavior characteristics not being compatible with satisfactory continued service. The commander also informed the applicant of his rights. a. On 3 December 1980, the applicant acknowledged notification of the proposed honorable separation from the Army. He also acknowledged that if he did not have sufficient prior service, he understood that due to non-completion of requisite active duty time, Department of Veterans Affairs and other benefits normally associated with completion of honorable active service would be affected. b. He did not desire to make statements or submit a rebuttal in his own behalf, and did not desire to have a separation medical examination if the separation was approved. c. The chain of command recommended approval of the separation action. On 9 December 1980, consistent with the chain of command recommendation, the separation authority approved the applicant’s release from active duty and transfer to the IRR. 13. On 12 December 1980, the applicant indicated there had been no change in his medical condition. 14. The applicant was honorably released from Active Duty and transferred to the U.S. Army Control Group (Annual Training) on 12 December 1980. The DD Form 214 he signed for shows he was discharged under the provisions of paragraph 5-33f(1), AR 635-200, by reason of “Trainee Discharge Program (TDP), Marginal or Nonproductive”. His character of service was listed as “Honorable.” The applicant completed 3 months and 23 days of net active duty this period, and his MOS was shown as 11B (Trainee). 15. On 19 August 1986, Orders show the applicant was honorably discharged from the Ready Reserve. 16. The applicant’s contentions were reviewed and considered; nevertheless, the evidence shows while attending OSUT he was counseled on multiple occasions for acts of indiscipline and misconduct. He received NJP for disobeying a lawful order and stated he wanted out of the Army. He was medically cleared for separation action and met the retention requirements of chapter 3, AR 40-501 (Standards of Medical Fitness). The applicant acknowledged that if he did not have sufficient prior service, he understood that due to non-completion of requisite active duty time, Veterans Administration and other benefits normally associated with completion of honorable active service would be affected. Additionally, in his petition to the Board he stated that he had to leave the Regular Army the night prior to graduation and did not complete required training. Although his record contains MOS Orders issued more than 15 days prior to the effective date, the applicant’s DD Form 214 and PQR confirm he was not awarded an MOS, and did not complete the training requirements. 17. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation. No medical evidence has been presented by the applicant to demonstrate an error or injustice in his separation from the Regular Army. 18. By regulation, the TDP provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive. 19. 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 Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 20. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting “a discharge rating”, so in essence, a referral to the Disability Evaluation System (DES). He states: “No discharge rating was provided for my service time in the U.S. Army. PTSD feelings, ear ring, cannot sleep, need medical assistance.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 20 August 1980 and was honorably discharged on 12 December 1980 under provisions provided in paragraph 5-33 of AR 635-200, Personnel Separations – Enlisted Personnel (15 August 1979): Trainee Discharge Program (TDP). His military separation code of JET denotes “Army Trainee Discharge.” c. There was no medical documentation submitted with the application. Because of the period of Service under consideration, there are no encounters in AHLTA nor documents in iPERMS. There are no encounters in JLV. d. The applicant received his first negative counseling statement on 24 October 1980. The platoon sergeant stated he “marched the platoon to the barber shop for haircuts in preparing for the company commander’s inspection. PVT {Applicant} returned to the barracks without a haircut and shaved his head. This is a violation of policy and regulations. Shaving his read resulted in his getting a profile for 21 days of not wearing a steel pot, causing him not to be able to participate in all of the training.” e. He received a negative counseling statement on 25 October 1980 for failing to correct deficiencies in his locker and failing to assist his squad with their area of responsibility. He received another counseling statement on 8 November 1980 for “negative attitude and refusing to shave:” “PVT {Applicant} refused my order to shave while preparing for inspection. PVT {Applicant} was not working on his equipment, he was downstairs playing a radio and trying to hide. PVT {Applicant} required 100% supervision and still was not prepared for the inspection. PVT {Applicant} was taken to the company commander prior to the inspection for counseling. This is totally substandard to any Army unit in the Army.” f. The applicant received an Article 15 for his failure to obey the noncommissioned officer’s order to shave. g. He underwent a mental status evaluation on 13 November 1980. The examination was normal and the applicant was noted to meet the retention standards in chapter 3 of AR 40-501, Standards of Medical Fitness. However, the examiner opined: “Rehab potential: Very Poor. The SM {service member} reported that he enlisted because he was frequently getting into trouble and that he felt he need to get away from his home environment. He reported he cannot adjust to the structure and discipline encountered in the ITB {infantry training battalion}. The SM could present a significant liability to the service. Consideration for separation is strongly encouraged. The SM presented little insight into the nature of his inability to be self-responsible. He is not amenable to counseling.” h. The applicant received several more negative counseling statements. He was evaluated by the chaplain on 18 November 1980: “SM feels he can do the training but doesn’t want to. SM says he made a big mistake in joining the Army, has no desire to serve his contract, and wants “out.” I recommend that PVT {Applicant} be discharged because of his lack of motivation and job dissatisfaction.” i. The applicant graduated advanced individual training and was awarded the military occupational specialty of 11B – Infantryman – effective 20 November 1980. j. The applicant’s pre-separation Report of Medical History Report of Medical Examination, completed on 24 November 1980, found no significant medical history nor any defects of diagnoses. k. On 1 December 1980, his company commander notified him of his initiation of separation action under paragraph 5-33 of AR 635-200. The specific reasons for his proposed action were: “You have demonstrated character and behavior characteristics not compatible with satisfactory continued service.” l. The battalion commander concurred with the company commander’s assessment and wrote on 3 December 1980: (1) “Private {Applicant} has not been responsive to training nor has he been able to get along with contemporaries. His misconduct has resulted in one Article 15 and will result in more serious problems if he remains in the Army. (2) Private {Applicant} does not have the qualities required to be a Soldier in the U.S. Army. Recommend that he be released under the Trainee Discharge Program and transferred to the Individual Ready Reserve.” m. The brigade commander directed his discharged from the Army and transfer to the Individual Ready Reserve on 9 December 1980. He was discharged from the Ready Reserve on 19 August 1986. n. There is no evidence the applicant had a service incurred permanent medical condition which would have failed the medical retention standards of chapter 3, AR 40- 501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. o. It is the opinion of the ARBA Medical Advisor that a referral of this case to the Disability Evaluation System is not warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Board members noted that the MOS orders were issued prior to his graduation and that he did not graduate from the 11B course. Additionally, the applicant’s pre-separation Report of Medical History Report of Medical Examination, completed on 24 November 1980, found no significant medical history nor any defects of diagnoses. His commander recommended his separation because he did not demonstrate character and behavior characteristics compatible with satisfactory continued service. He was released under the Trainee Discharge Program. Board members agreed with the medical reviewer that there is no evidence the applicant had a service incurred permanent medical condition which would have failed the medical retention standards, which means there was no reason to refer him to the disability system. 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 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel from the Army. a. Paragraph 5-33, then in effect governed the Trainee Discharge Program (TDP). This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or failed to respond to formal counseling. b. The service member must have voluntarily enlisted, must be in Basic Training (BT), Advanced Individual Training (AIT), on-the-job training, or service school training prior to award of a Military Occupational Specialty (MOS), and must not have completed more than 179 days of active duty by the date of separation. c. Soldiers could be separated when they demonstrated 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, or had demonstrated character and behavior characteristics not compatible with continued service. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. b. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013476 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1