IN THE CASE OF:	  

		BOARD DATE:	       19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080016651 


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 that his general discharge be upgraded to honorable.  He also requests, in effect, that the separation code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed. 

2.  The applicant states, in effect, that when he enlisted he was an exceptional Soldier; however, he was having marital problems.  He contends that they sought marital counseling but he allowed his personal life to get out of hand which cost him his military career.  He indicates that a platoon sergeant advised him to terminate his career before it got out of hand, that he was handed a chapter discharge for unsatisfactory performance coded “JHJ,” and that he took the discharge and tried to work on his marriage.  He states that he was misguided on the consequences of accepting this type of discharge, that he would have never agreed to it, and that he never received any disciplinary actions. 

3.  The applicant provides a certificate of dissolution of marriage or annulment in support of his application. 

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 enlisted in the Regular Army on 5 November 1991 for a period of 4 years.  He was awarded military occupational specialty (MOS) 43E (parachute rigger).
 
3.  On 26 October 1992, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties.  His punishment consisted of 7 days of restriction.

4.  On 2 December 1992, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties (two specifications).  His punishment consisted of a reduction to E-2, a forfeiture of pay (suspended), extra duty, and restriction.

5.  Between 5 October 1992 and 2 December 1992, the applicant was counseled on three occasions for improper parachute packing procedures and unsatisfactory performance.

6.  On 11 January 1993, a bar to reenlistment was imposed against the applicant.

7.  On 13 October 1993, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.

8.  On 13 October 1993, the applicant declined the opportunity to consult with counsel.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected not to submit a statement in his own behalf.

9.  On 22 October 1993, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.
    
10.  Accordingly, the applicant was discharged with a general discharge on 
5 November 1993 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served a total of 2 years and 1 day of creditable active service.  
11.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, CHAPTER 13.”  Item 26 (Separation Code) on his DD Form 214 shows the entry, "JHJ."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "UNSATISFACTORY PERFORMANCE.”

12.  On 29 March 2002, the Army Discharge Review Board denied the applicant’s request for an honorable discharge.

13.  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, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) 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.  
 
DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was misguided on the consequences of accepting this type of discharge and that he would have never agreed to it, evidence of record shows that he declined the opportunity to consult with counsel on 13 October 1993.

2.  The evidence of record does not support the applicant’s contention that he never received any disciplinary actions.  Evidence of record shows that he received two nonjudicial punishments prior to his discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

5.  The separation code used in the applicant’s case is correct and was applied in accordance with the applicable regulations.

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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________XXX__________
               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)                                         AR20080016651



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ABCMR Record of Proceedings (cont)                                         AR20080016651



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