2. The applicant makes no specific request but states, in effect, that he was denied unemployment benefits because he did not complete a full term of active service.
3. The applicants military records show that he was born on 22 September 1969. He completed 12 years of formal education. On 2 March 1993, he enlisted in the Regular Army for 4 years. He completed basic training and advanced individual training and was awarded military occupational specialty 62E (Heavy Construction Equipment Operator). His highest grade held was E-4. His awards included the Army Achievement Medal (1st Oak Leaf Cluster), the Good Conduct Medal and the Humanitarian Service Medal. He completed one tour in Korea.
4. On 22 July 1996, the applicants commander initiated action to separate him under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. The only reason for his proposed action was consecutive failures of the Army Physical Fitness Test (APFT). The commander recommended he receive an honorable discharge.
5. The applicant consulted with counsel and elected not to submit statements on his own behalf.
6. On 22 July 1996, the appropriate authority approved the recommendation and directed the soldier be issued a general discharge.
7. The applicant completed a separation physical and was found qualified for separation.
8. On 31 July 1996, he was discharged, in pay grade E-4, under the provisions of AR 635-200, Chapter 13, unsatisfactory performance, with a general discharge. He had completed 3 years, 5 months and 1 day of creditable active service and had no lost time.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Commanders will separate a soldier for unsatisfactory performance when it is clearly established that, in the commanders judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.
10. The VA and some states, in determining qualifications for benefits administered by their agencies, generally hold that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until that agency determines that the early discharge amounted to a complete and unconditional separation from the service.
CONCLUSIONS:
1. The applicants discharge from service was accomplished in accordance with applicable laws and regulations in effect at the time of his separation and the discharge an appropriate option for the approving authority to direct to be given.
2. However, in the interest of justice, this Board recognizes the applicants exemplary service, the fact that the sole reason for discharge was his failure to pass the APFT, the fact that he completed over 3 years of service and the fact that his immediate commander recommended he receive an honorable discharge.
3. It would be fair and equitable to upgrade the applicants general discharge to an honorable discharge. It would also be fair and equitable to consider this discharge as having been issued as a complete and unconditional separation.
4. The circumstances of the applicants discharge on 31 July 1996 have worked an injustice upon him by depriving him of consideration for certain VA and other state/federal benefits for his period of service.
5. However, unemployment benefits are a matter of state law. Any corrections this Board may make may or may not have any effect where unemployment benefits are concerned.
6. In view of the foregoing, it would be appropriate to correct the applicants records as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was given an honorable discharge from the Army on 31 July 1996, under the provisions of Chapter 13, Army Regulation 635-200. Also, that the applicant was eligible for a complete and unconditional separation from the military service at this time.
2. That the individual concerned be issued an Honorable Discharge Certificate from the Army of the United States, dated 31 July 1996, denoting an honorable discharge in lieu of the general discharge now held by him.
3. That the individual concerned be issued a new DD Form 214 reflecting the aforementioned corrections.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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