IN THE CASE OF:	

		BOARD DATE:	      15 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007097 


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 the "unsatisfactory performance" entry in item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states that he had an unblemished record while he was in the military and that his good conduct along with his other positive citations should be noted.  He states that he cannot understand the notation in item 28 and he requests that he be provided an explanation as to why that notation is reflected.  He states that he was offered an early release along with others and that he accepted.  He also states that he wants to enlist in the National Guard and this entry hurts his chances.

3.  The applicant provides a copy of his DD Form 214.

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.  On 30 October 1990, the applicant enlisted in the Regular Army in Cincinnati, Ohio, for 4 years in pay grade E-1.  He successfully completed his training as a cannon crewmember.

3.  On 30 March1993, the applicant was counseled for failing to pass the Army Physical Fitness Test (APFT).  During the counseling, his commanding officer (CO) stated that the applicant had failed an APFT on 27 October 1992 and his failure was attributed to a possible asthma attack and was therefore he was not counseled at that time.  The applicant was informed that he was required to attend a special fitness training program on Monday, Tuesday, Wednesday, and Friday of each week until he passed the test.  He was further informed that his progress would be monitored by a master fitness trainer and that he would be released from the program after 30 days by passing the APFT.  He was told that his CO was initiating a flag on his records which suspended promotion, reenlistment, and extensions and that if he failed to pass the test by 30 April 1993, administrative separation action would be initiated against him under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 13-2.  He was told that if he passed the test, the flag would be removed.

4.  On 27 April 1993, the applicant was counseled for failure to pass the APFT after being afforded ample time to do so.  The applicant’s CO noted that it was his fifth consecutive failure.  The CO stated that he was initiating a bar to reenlistment and administrative separation action against the applicant under the provisions of Army Regulation 635-200, paragraph 13-2.

5.  On 28 April 1993, the applicant underwent a mental status evaluation and it was determined that he had no psychiatric disease or defect which warranted disposition through medical channels.

6.  On 7 May 1993, the applicant was notified that action to eliminate him from the Army under the provisions of Army Regulation 635-200, paragraph 13-2, for unsatisfactory performance had been initiated.  In the notification, the applicant’s CO cited the failure of four consecutive APFT's as the basis for the proposed action.  The applicant acknowledged receipt of the notification on 10 May 1993 and after consulting with counsel he opted not to submit a statement in his own behalf.

7.  The appropriate authority approved the separation action on 18 May 1993 and directed that the applicant’s service be characterized as honorable.  On 28 May 1993, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his service obligation.  He had completed 2 years, 6 months, and 29 days of net active service.

8.  The DD Form 214 that the applicant was furnished at the time of his REFRAD shows that his awards include the Army Achievement Medal with one oak leaf cluster, the Army Lapel Button, the Army Service Ribbon, the Army Good Conduct Medal (First Award), the National Defense Service Medal, the Overseas Service Ribbon with Numeral 1, the Expert Marksmanship Qualification Badge with Grenade Bar, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Parachutist Badge.

9.  A review of the applicant’s records does not show that he ever applied to the Army Discharge Review Board for a change of his narrative reason for separation within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when in the commander's judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for separation currently reflected on his DD Form 214 should be changed from unsatisfactory performance.

2.  The applicant’s contentions have been noted; however, they are not supported by the evidence of record.

3.  The applicant’s records show that he failed the APFT on at least four different occasions which led to action being initiated to separate him from the Army for unsatisfactory performance.  The applicant was notified in writing of the basis for the separation action against him and he acknowledged receipt of the notification on 10 May 1993.  His reason for separation was proper considering all the facts of the case and the applicant has failed to submit evidence to the contrary.

4.  The applicant’s conduct and his awards and decorations have been considered.  However, they are not sufficiently mitigating to change the reason for his discharge.  His character of his service was honorable and this information is currently reflected on his DD Form 214.

5.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6. In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090007097



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ABCMR Record of Proceedings (cont)                                         AR20090007097



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