BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100011295 


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 following changes be made to his DD Form 214 (Certificate of Release or Discharge from Active Duty):

* Item 24 (Character of Service) upgraded from under honorable conditions (general) 
* Item 25 (Separation Authority) change Army Regulation 635-200, Chapter 13 to a more favorable authority
* Item 28 (Narrative Reason for Separation) change Unsatisfactory Performance to a more favorable reason for separation

2.  The applicant states, in effect, he had a service-connected injury and he was asked if he wanted to be discharged and he declined at the time.  However, 
2 months later, he requested a discharge due to difficulties performing his duties. 

3.  The applicant provides the following documents:

* Letter of recommendation, dated 13 October 1993
* Department of Veterans Affairs (VA) Rating Decision

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 8 September 1992.  He completed the training requirements and he was awarded military occupational specialty 45T (Bradley Fighting Vehicle Turret Mechanic).  The highest rank/grade he attained was private first class/E-3.

3.  His records show he was counseled for having delinquent accounts with the Army and Air Force Exchange Services.  He also had involuntary payroll deductions for the monies he owed and he was enrolled in a budget counseling class.

4.  His records also contain several other counseling statements for multiple instances of failure to repair, indebtedness, adjustment disorder, and alcohol related problems. 

5.  On 6 June 1994, 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) due to unsatisfactory performance with a general discharge.  The immediate commander stated the discharge was recommended because of the applicant's failure to repair, indebtedness, alcohol problems, and an adjustment disorder.  

6.  On 6 June 1994, the applicant 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 a 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).

7.  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.
8.  On 6 June 1994, 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 rehabilitation was not in the best interest of the Army as it would not produce a quality Soldier.

9.  On 14 June 1994, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance with a general discharge.  Accordingly, the applicant was discharged on 29 June 1994.  The DD Form 214 he was issued shows he completed 1 year, 9 months, and 22 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 28 shows the entry "Unsatisfactory Performance" 

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

11.  He submitted the following documents: 

	a.  A letter of recommendation, dated 13 October 1993, wherein a medical officer stated the applicant underwent anterior cruciate ligament reconstruction in July 1993 and he would be recommended for a less strenuous specialty.

	b.  A copy of his VA Rating Decision that shows he received service-connected disability compensation for his left knee. 

12.  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.

13.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded and his separation authority 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.  Based on his record of substandard performance and/or indiscipline, his service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  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.  The only valid narrative reason for separation permitted under this paragraph is "Unsatisfactory Performance."

5.  The applicant's post-service award of service-connected disability compensation by the VA is noted; however, it does not negate the fact that his performance was not satisfactory or change the narrative reason for his separation.  He appears to have been discharged under the appropriate separation authority and he was assigned the appropriate authority for separation as well as the appropriate 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)                                         AR20100011295



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ABCMR Record of Proceedings (cont)                                         AR20100011295



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