IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100023355 


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 item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "unsatisfactory performance" to "convenience of the government."

2.  The applicant states:

* he was supposed to be honorably discharged for the convenience of the government, but his captain changed his discharge in his last week
* his master sergeant told him not to worry, it would be corrected
* he assumed his discharge had been corrected since he was approved for two previous veterans' certificates of eligibility (COE) since his separation
* he is now in the process of buying a home and cannot get an update on his COE because of his narrative reason
* his performance was never an issue
* he served at battalion level and performed all of his duties

3.  The applicant provides a Department of Veterans Affairs COE.

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.  He enlisted in the Regular Army on 2 March 1983 for a period of 3 years.  He completed training and was awarded military occupational specialty 95B (military police).

3.  On 19 August 1983, nonjudicial punishment (NJP) was imposed against the applicant for failing to report to his appointed place of duty.

4.  On 28 October 1983, NJP was imposed against the applicant for being absent without leave from 28 September 1983 to 29 September 1983.

5.  Records show he was counseled on four separate occasions for indebtedness, failure to report to the appointed place of duty at the appointed time, a pending paternity suit, and criminal offenses against a German girl.

6.  On 15 May 1984, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance.  His unit commander cited:

* he did not possess the qualities necessary to become an effective Soldier
* he set a pattern of unsuitable acts and continued misconduct which was detrimental to good morale and discipline in the Army
* he received one Article 15 for being AWOL
* he was counseled for indebtedness and charged with criminal acts toward a local national citizen
* his inability to adapt to military standards of conduct and discipline warranted his immediate discharge

7.  He acknowledged receipt of the notice of initiation proceedings and indicated his election of rights would be furnished by the suspense date.  He also indicated he had been counseled regarding the type of discharge he might receive and the possible effect on him.  However, his election of rights is not available.

8.  On 29 May 1984, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

9.  He was discharged under honorable conditions on 6 June 1984 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed a total of 1 year, 3 months, and 4 days of creditable active service.

10.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "CHAPTER 13, ARMY REGULATION 635-200."  Item 26 (Separation Code) of his DD Form 214 shows the entry "JHJ"  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "UNSATISFACTORY PERFORMANCE."

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

12.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code "JHJ" is "unsatisfactory performance" and the regulatory authority is Army Regulation 635-200, chapter 13.

DISCUSSION AND CONCLUSIONS:

His contentions were carefully considered.  However, his narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.  As a result, 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 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)                                         AR20100023355



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ABCMR Record of Proceedings (cont)                                         AR20100023355



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