BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090018955 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

	a.  Item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) from private (PV2)/E-2 to specialist four (SP4)/E-4; and 

	b.  Item 28 (Narrative Reason for Separation) from unsatisfactory performance to something more favorable.

2.  The applicant states that he was drinking a beer in the battalion area when his rank was taken.  He does not drink much at all.  After all, why would he lose his rank of 6 years?  He would like the Board to correct his record so his children would see their father did a good thing and for him to feel better about his accomplishments.

3.  The applicant did not provide any additional documentary evidence 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's records show he enlisted in the Regular Army for a period of 4 years on 16 January 1976 and held military occupational specialty 36C (Lineman).  His records also show he executed a 3-year reenlistment on 12 October 1979, a 6-month extension on 20 May 1980, and another 3-year reenlistment on 7 April 1983.  He attained the rank/grade of SP4/E-4.

3.  His records also show he served in Germany from on or about 17 August 1976 to on or about 7 March 1979 and on or about 8 March 1980 to on or about 22 September 1983.  His records further show he was awarded the Army Service Ribbon, Overseas Service Ribbon (2nd Award), Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Army Good Conduct Medal (2nd Award), and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  His records reveal an extensive history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 5 March 1979, in Germany, for being disorderly in quarters.  His punishment consisted of a reduction to private first class (PFC)/E-3.

	b.  On 28 June 1979, at Fort Hood, TX, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a suspended reduction to PFC/E-3.

	c.  On 27 August 1970, in Germany, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a suspended reduction to PFC/E-3, a forfeiture of $138.00 per month for one month, and 14 days of restriction and extra duty.

	d.  On 1 September 1982, in Germany, for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order.  His punishment consisted of 14 days of restriction and extra duty.

	e.  On 29 November 1982, in Germany, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of 14 days of extra duty and a suspended reduction to PFC/E-3.

	f.  On 17 May 1983, in Germany, for being absent without leave (AWOL) from on or about 11 April 1983 to on or about 12 April 1983.  His punishment consisted of 7 days of extra duty.

	g.  On 22 June 1983, in Germany, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to PFC/E-3.

	h.  On 29 June 1983, in Germany, for four offenses of failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to PFC/E-3.

	i.  On 29 July 1983, in Germany, for disobeying a lawful order from his battalion commander.  His punishment consisted of a reduction to PV2/E-2 and 14 days of extra duty.

5.  On 9 September 1983, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 600-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  The immediate commander stated that the applicant's retention in the Army would have an adverse effect on military discipline, good order, and morale, and it was likely he would continue to have a disruptive influence in present and future assignments.

6.  On 9 September 1983, he acknowledged receipt of the letter of notification of separation action.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights.  He was afforded the opportunity to consult with appointed counsel but he declined that opportunity.  He also waived consideration of his case by a board of officers and elected not to submit a statement in his own behalf.  He further indicated that he understood that he may expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him.

7.  On 9 September 1983, his immediate commander initiated a recommendation for his separation under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  The immediate commander remarked that separation was specifically recommended because the applicant lacked the 

maturity and self-discipline to become a productive Soldier.  He was given ample opportunities and guidance by his chain of command, but his entire attitude and performance remained unacceptable.  He demonstrated no potential for retention, promotion, or further rehabilitative efforts.

8.  On 12 September 1983, the separation authority approved the applicant's discharge from the Army under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  Accordingly, on 1 October 1983, the applicant was discharged.

9.  The DD Form 214 he was issued confirms he was discharged for unsatisfactory performance in accordance with Army Regulation 635-200, chapter 13.  This form also shows that he completed 7 years, 8 months, and 16 days of creditable active military service.  Additionally:

	a.  Items 4a and 4b show the entries PV2 and E2, respectively.

	b.  Item 28 shows the entry "Unsatisfactory Performance."

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.  A general or honorable discharge was considered appropriate.

11.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b of the DD Form 214 show the Soldier's rank and pay grade at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant lacked the maturity and self-discipline to become a productive Soldier.  He was given ample opportunities and 

guidance by his chain of command, but his entire attitude and performance remained unacceptable.  He demonstrated no potential for retention, promotion, or further rehabilitative efforts as evidenced by his extensive history of NJP.  Accordingly, his chain of command initiated separation action against him for unsatisfactory performance.

2.  The reason for his separation was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 13, due to his unsatisfactory performance.  Absent his unsatisfactory performance, there was no fundamental reason to process him for separation.  The underlying reason for his discharge was his unsatisfactory performance.  The only valid narrative reason for separation permitted under that paragraph is "Unsatisfactory Performance" which is correctly shown on his DD Form 214.

3.  The evidence of record shows he accepted NJP under the provisions of Article 15 of the UCMJ on 29 July 1983 that resulted in a punishment of a reduction to PV2/E-2 and held this rank/grade until his discharge.  There is no evidence that he was advanced beyond this rank/grade from the time he was reduced to the time he was discharged.  Therefore, his rank and grade are correctly shown on his DD Form 214.

4.  The applicant's motive is noble; however, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, he must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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.



      ___________x____________
               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)                                         AR20090018955



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ABCMR Record of Proceedings (cont)                                         AR20090018955



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