IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100009978 


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 the following items on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to more favorable codes:

* Item 25 (Separation Authority), from "AR (Army Regulation) 635-200 (Personnel Separations) Chap (Chapter) 13
* Item 26 (Separation Code), from "JHJ"
* Item 27 (Reentry (RE) Code), from "3" and "3B"
* Item 28 (Narrative Reason for Separation), from "Unsatisfactory Performance"

2.  The applicant states his record should show he was not a poor Soldier.  His only counseling statement clearly shows he was superior in his physical abilities and that his squad leader could count on him.  

3.  The applicant provides the following documents:

* A self-authored statement
* DD Form 214
* College transcripts
* General counseling statement
* Athletic achievement certificates
* Honor roll certificate
* Certificate of recognition (High School Football)
* Promotion orders
* Advanced individual training diploma
* Running certificates of completion 
* Certificates of achievement, participation, service, membership, training, and/or completion
* Letter from his daughter

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 (RA) for a period of 4 years on 29 May 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was specialist/E-4.

3.  His records also show he served in Panama from on or about 10 May 1983 to on or about 11 September 1984.  He was awarded the Army Service Ribbon, Parachutist Badge, Expert Marksmanship Qualification Badge with Grenade and Dragon Gunner Bars, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 2 August 1982, he departed his Fort Irwin, CA, unit in an absent without leave (AWOL) status.  However, he returned to military control 4 days later, on 5 August 1982.

5.  His records contain several counseling statements during the period June 1983 through January 1984, which indicate he generally met requirements.  However, all the counseling statements refer to his need to meet or his inability to meet Army weight control standards.

6.  His records contain a 3rd endorsement, dated 2 December 1983, in which he acknowledged his entry into the Army Weight Control Program and his associated responsibilities to meet weight control standards.  There is also a 
DA Form 689 (Individual Sick Slip), dated 2 December 1983, signed by a medical official that confirms his enrollment in the Army Weight Control Program. 

7.  The record also contains a Dietary History Questionnaire, dated 16 May 1983, which indicates he was provided nutritional counseling and a plan to assist him in his weight loss.  It further indicates he was to be monitored on a weekly basis to ensure he was making progress. 

8.  On 20 August 1984, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance.  The immediate commander stated that the discharge was recommended because of the applicant's total lack of discipline, professionalism, and good judgment which had brought discredit and shame upon himself and the unit.  His conduct was totally irresponsible and constituted a complete and willful abrogation of his duties as a Soldier in the U.S. Army.

9.  On 22 August 1984, he acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected to submit a statement on his own behalf (it is not available for review with this case).

10.  He further acknowledged that he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he might be ineligible for many or all of the benefits as a veteran under both Federal and State laws.

11.  On 27 August 1984, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance.  The immediate commander made similar remarks to those he made in the notification memorandum and added that during the period April 1983 to date, the applicant was assigned various duties within the company under different supervisors.  His superiors agreed that any attempt to rehabilitate him would not have produced the type of Soldier needed by the Army.


12.  On 27 August 1984, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed he be furnished an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 12 September 1984.  The DD Form 214 he received shows he completed 3 years, 3 months, and 11 days creditable military service and he had 3 days of lost time. Additionally: 

* Item 25 shows the entry "AR 635-200, Chapter 13"
* Item 26 shows the entry "JHJ"
* Item 27 shows the entry "3" and "3B"
* Item 28 shows the entry "Unsatisfactory Performance" 

13.  On 25 June 2003, he petitioned the ABCMR for an upgrade of his discharge and on 20 July 2004, the Board granted him relief in that it upgraded his general discharge to fully honorable.  Accordingly, his DD Form 214 was voided and he was issued a new one reflecting the upgraded character of service.

14.  He submitted the following documents: 

	a.  A self-authored statement wherein he states his unsatisfactory performance was based on the fact that he was overweight and he was AWOL for 3 days.  But the 3 days do not outweigh his good overall record.  Additionally, he had previously been punished for being AWOL.  Nevertheless, he asks for forgiveness by this Board.  He gave the Army 100% of himself and was indeed a good and satisfactory Soldier.  

	b.  Multiple athletic achievement certificates, honor roll certificate, certificates of recognition, running certificates of completion, and certificates of achievement, participation, service, membership, training, and/or completion, prior, during, and after his service.

	c.  A get well letter from his daughter subsequent to his hospitalization.

	d.  various college transcripts. 

15.  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.

16.  Army Regulation 635-200 states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-1 includes a list of the RA RE codes.  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-3B indicates lost time. 

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JHJ" is the correct code to be assigned to Soldiers separating under chapter 13 of Army Regulation 635-200.

18.  The SPD Code/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The cross reference table, in effect at the time, shows the SPD code of "JHJ" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his separation authority, separation code, RE code, and narrative reason for separation should be corrected. 

2.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record confirms the narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 13 of Army Regulation 635-200 due to unsatisfactory performance.  Absent the unsatisfactory performance, there was no fundamental reason to process him for separation.  The underlying reason for his discharge was his unsatisfactory performance.  

4.  The only valid narrative reason for separation permitted under this paragraph is "Unsatisfactory Performance."  The appropriate separation code associated with this type of discharge is "JHJ" and the appropriate RE code associated with this type of discharge and SPD code is "RE-3."  Additionally, since he had 3 days of lost time, he was also appropriately assigned RE-3B.

5.  The applicant's athletic and academic achievements were carefully considered.  Additionally, the fact that his character of service was previously upgraded was also considered.  However, it does not negate the fact that his performance was not satisfactory or change the narrative reason for his separation.  

6.  The applicant appears to have been discharged under the appropriate separation authority and he was assigned the appropriate separation code, RE code, and narrative reason for separation.  In view of the foregoing, there is insufficient evidence to grant him the 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)                                         AR20100009978





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ABCMR Record of Proceedings (cont)                                         AR20100009978



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