IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100019684 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states his unsatisfactory performance was due to not passing physical fitness training.  He contends that he suffered from chronic fatigue syndrome.  He also served a full deployment to Iraq in support of Operation Desert Storm.  He further states his reason for separation sends a negative message and does not explain the full reason for unsatisfactory performance.

3.  The applicant indicated on his application that he submitted a Department of Veterans Affairs (VA) rating decision, but it was not received with 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 enlisted in the Regular Army on 11 August 1989.  He successfully completed his initial training and he was awarded military occupational specialty 16S (MANPADS [Man-Portable Air-Defense Systems] Crewmember).  He was subsequently assigned for duty with the 3rd Air Defense Artillery Regiment located in the Federal Republic of Germany.

3.  The applicant served in Southwest Asia from 3 January to 3 May 1991.

4.  On 25 July 1991, the applicant failed a diagnostic Army Physical Fitness Test (APFT).

5.  A DA Form 4856 (General Counseling Form) shows:

	a.  on 6 September 1991, the applicant was counseled regarding his APFT failure on 20 August 1991; his previous agreement that if he failed this time, separation action would be initiated; and that he was rescheduled for testing on
9 September 1991; and

	b.  on 9 September 1991, the applicant was counseled regarding his failure of a second APFT for record.  The counselor stated that it appeared the applicant's failures were due to a complacent attitude.

6.  The applicant non-concurred with both counseling statements but did not offer any explanation or rebuttal argument.

7.  A DA Form 705 (APFT Scorecard) shows the applicant failed the APFT on
25 July (diagnostic test), 20 August (record test), and 9 September 1991 (record test).

8.  The applicant’s commander initiated a recommendation to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13.  The specific reasons for the proposed action were his past performance and estimated potential were not in keeping with the standards expected of a Soldier.  The applicant acknowledged receipt/notification of the proposed separation action on 11 September 1991.

9.  On 23 September 1991, having been advised by consulting counsel of the basis for the contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights, he elected not to make a statement in his own behalf.

10.  The company commander forwarded the discharge action to the separation authority.  The specific reason for the recommended action was that the Soldier had consistently been warned about physical training and still failed to take the proper steps to improve himself.  He could not meet the unit and Army standards.

11.  The appropriate separation authority approved the recommendation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, and directed the issuance of a general discharge.  He further directed that the applicant will not be transferred to the Individual Ready Reserve.

12.  The applicant was accordingly discharged on 28 October 1991.  His DD Form 214 issued at the time of his separation shows he was discharged under the provisions of Army Regulation 635-200, chapter 13.  He was issued a separation code of "JHJ" with a narrative reason for separation of "unsatisfactory performance."  He completed 2 years, 2 months, and 18 days of creditable active service.

13.  The applicant's service medical records, to include his separation medical examination, are not available for review.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

16.  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.


17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code "JHJ" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to honorable because he suffered from chronic fatigue syndrome which caused him to fail the APFT.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed, SPD code, and the narrative reason for separation were appropriate considering all of the facts of the case.

4.  There is no available evidence showing that the applicant had a medical condition at the time which precluded him from successfully completing the APFT.  Furthermore, the applicant offered no explanation or argument in response to his counseling for failing the APFT.

5.  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.



      ___________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)                                         AR20100019684



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ABCMR Record of Proceedings (cont)                                         AR20100019684



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