RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 October 2005
      DOCKET NUMBER:  AR20050002313


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Jeanette McCants              |     |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 his narrative reason for
separation be changed to "Failure to Meet Army Physical Fitness Test (APFT)
requirements" or "Released from Active Duty" or anything other than
"Unsatisfactory Performance."  He requests that his DD Form 214
(Certificate of Release or Discharge from Active Duty) be corrected to show
his deployment to Saudi Arabia.  He also requests that he be awarded an
unspecified badge or medal for his service in Saudi Arabia.

2.  The applicant states the narrative reason for separation
(Unsatisfactory Performance) covers a broad band of things which are
usually bad and it has hurt him in regards to employment as a police
officer and security guard.  He contends that the sole reason for his
separation was failure to meet APFT requirements.  He states that after
informing his first sergeant that his wife was having pregnancy problems,
he was told he could not take a leave of absence.  He indicated that his
first sergeant told him the only way to get out was to fail the APFT, so he
did what he had to do.  He also states that he was deployed to Saudi Arabia
in 1994 or 1995 in support of Operation Vigilant Warrior with Headquarters
Support Company, 61st Area Support Medical Battalion.

3.  The applicant provides a copy of his amended DD Form 214; a copy of his
original DD Form 214; and page 5 of his OSA Form 172 (Military Review
Boards Case Report and Directive).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 July 1995.  The application submitted in this case is dated
3 February 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.  The applicant enlisted on 5 October 1993 and trained as a medical
specialist. Records show the applicant failed two consecutive record APFTs.
 As a result, on 28 July 1995, he was discharged under honorable conditions
(a general discharge) under the provisions of Army Regulation 635-200,
chapter 13, for unsatisfactory performance.  On 17 November 2000, the Army
Discharge Review Board (ADRB) upgraded the applicant’s discharge to
honorable and voted not to change his narrative reason for separation.

4.  Item 12f (Foreign Service) on the applicant's amended DD Form 214 shows
the entry, "00 00 00."  Item 25 (Separation Authority) on this DD Form 214
shows the entry, "AR [Army Regulation] 635-200, CHAP [Chapter] 13."  Item
26 (Separation Code) on this DD Form 214 shows the entry, "JHJ."  Item 28
(Narrative Reason for Separation) on this DD Form 214 shows the entry,
"UNSATISFACTORY PERFORMANCE."

5.  Item 5 (Oversea Service) on the applicant's DA Form 2-1 (Personnel
Qualification Record) is blank.  However, records from the Defense Finance
and Accounting Service (DFAS) show he received hostile fire pay from
October 1994 to December 1994.  Information obtained from the internet
shows that Operation Vigilant Warrior was in effect during the period 14
October 1994 to 21 December 1994, a total of 2 months and 9 days.

6.  Army Regulation 635-200 sets forth the requirements and procedures for
administrative discharge of enlisted personnel.  Chapter 13 of this
regulation, in effect at the time, states in part “initiation of separation
proceedings is required for soldiers without medical limitations who have
two consecutive failures of the Army Physical Fitness Test, unless the
responsible commander chooses to impose a bar to reenlistment per Army
Regulation 601-280 (Total Army Retention Program)."  The regulation
requires that separation action will be taken when in the commander’s
judgment the individual will not develop sufficiently to participate
satisfactorily in further military training and/or become a satisfactory
Soldier.  Service of Soldiers separated because of unsatisfactory
performance under this regulation was characterized as honorable or under
honorable conditions.

7.  Army Regulation 635-5-1 (Separation Program Designator Codes)
prescribes the specific authorities (regulatory, statutory, or other
directives), the reasons for the separation of members from active military
service, and the separation program designators to be used for these stated
reasons.  The regulation states the reason for discharge based on
separation code “JHJ” is “Unsatisfactory Performance” and the regulatory
authority is Army Regulation 635-200, chapter 13.

8.  Army Regulation 635-5 establishes the standardized policy for preparing
and distributing the DD Form 214.  The regulation in effect at the time
provided, in pertinent part, that the total amount of foreign service
completed during the period covered by the DD Form 214 would be entered in
item 12f.  The regulation also stated that the amount of foreign service
would be taken from item 5 on the Soldier’s Enlisted Qualification Record
or, if necessary, verified from the Soldier’s Military Personnel Records
Jacket.

9.  Army Regulation 600-8-22 (Military Awards) does not authorize a badge
or medal for service in Saudi Arabia during the period 14 October 1994 to
21 December 1994.

10.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  A narrative reason for separation is not changed for the sole purpose
of obtaining employment opportunities.

2.  The narrative reason for separation used in the applicant’s case is
correct and was applied in accordance with the applicable regulations.

3.  The applicant's inclusive dates of his deployment to Saudi Arabia are
not available.  However, since DFAS records show he received hostile fire
pay from October 1994 to December 1994 and Operation Vigilant Warrior was
in effect during the period 14 October 1994 to 21 December 1994, it is
reasonable to presume that the applicant was deployed to Saudi Arabia
during the period        14 October 1994 to 21 December 1994.  Therefore,
there is sufficient evidence on which to amend item 12f on his DD Form 214
to show he completed 2 months and 9 days of foreign service.  Also, as an
exception to policy, item 18 (Remarks) should be corrected to show his
deployment to Saudi Arabia during the period
14 October 1994 to 21 December 1994.

4.  The governing awards regulation does not authorize a badge or medal for
service in Saudi Arabia in support of Operation Vigilant Warrior.
Therefore, there is no basis for granting the applicant's request for a
badge of medal.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 17 November 2000.
As a result, the time for the applicant to file a request for correction of
any injustice to this Board expired on 16 November 2003.  The applicant did
not file within the 3-year statute of limitations; however, based on the
available evidence it would be in the interest of justice to excuse failure
to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

JM_____  JG______  JM_____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by:

      a.  deleting the entry, "00 00 00" in item 12f on his DD Form 214;

      b.  adding the entry, "00 02 09" in item 12f on his DD Form 214; and

      c.  adding the entry, " SAUDI ARABIA SERVICE: 14OCT94-21DEC94” in
item 18 on his DD Form 214.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
amendment of his narrative reason for separation or award of an unspecified
badge or medal for his service in Saudi Arabia in support of Operation
Vigilant Warrior.




            ___John Meixell_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002313                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0200                                |
|2.                      |100.0000                                |
|3.                      |107.0000                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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