IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100006983 


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 narrative reason for separation be changed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 March 1994.

2.  The applicant states the narrative reason for separation on his DD Form 214 tarnished an otherwise sparkling career.  He states his first sergeant assured him that he would be discharged without a blemish.  The applicant continues that he did not think his narrative reason for separation would negatively affect him.  However, he has found it nearly impossible get government employment, and it has kept him from pursuing a career in law enforcement.
 
3.  The applicant provides two letters of support from former fellow Soldiers, dated 1 February 1994 and 7 March 1994.

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 12 October 1990.  He successfully completed the training requirements and he was awarded military occupational specialty 98G (Electronic Warfare/Signal Intelligence Voice Interceptor/Communications Electronic Warfare Equipment Operations).

3.  A BH Form - 1 (General Counseling Form), dated 1 December 1993, indicates the applicant was counseled for failing his Army Physical Training Test (APFT).  The document states that the applicant requested to take a second record APFT after failing his first on 15 October 2003.  The applicant was advised if he failed the APFT a flag could be placed in his military records and no favorable actions would be granted while the flag was in his records.  He may receive punishment under the Uniform Code of Military Justice (UCMJ) or possible action may include paperwork to process him out of the military.

4.  On 16 February 1994, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 13, for unsuitability.  The reason cited by the commander was that the applicant failed two consecutive record APFTs on 15 October 1993 and 1 December 1994.

5.  On 16 February 1994, the applicant was afforded the opportunity to consult with legal counsel for consultation.  He declined the opportunity and waived consulting counsel.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation
635-200.  The applicant declined to submit a statement in his own behalf.

6.  A trial counsel for the Judge Advocate General (JAG) verified that the applicant’s separation packet met all the requirements set forth in the regulation and was legally sufficient.
 
7.  On 24 February 1994, the appropriate authority approved the discharge recommendation and directed that the applicant be honorably discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  On 9 March 1994, the applicant was separated after completing
3 years, 4 months, and 28 days of creditable active service.  Item 28 (Narrative 

and Reason for Separation) of his DD Form 214 shows the entry "UNSATISFACTORY PERFORMANCE."

8.  Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 13, provides, in pertinent part, for the separation of a Soldier when it is determined that he/she is unqualified for further military service because of unsatisfactory performance. Paragraph 13-2e states that initiation of separation proceedings is required for Soldiers without medical limitation who have two consecutive failures of the APFT.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show that he was discharged from the military under the provisions of Army Regulation 635-200, chapter 13, for failing to pass two consecutive APFTs.  By regulation, this mandated the applicant's separation for unsatisfactory performance.

2.  The elimination proceedings verified that the applicant was afforded due process.  He was given an opportunity to raise any issues he deemed appropriate during his separation processing.  He waived counsel and he elected not to make a statement in his own behalf.  The applicant has failed to submit evidence that the narrative reason for his separation “unsatisfactory performance,” is in error or unjust.

3.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100006983



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)