IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20100029484 


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 an upgrade of his general discharge and change of his "unsatisfactory performance" narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he failed the Army Physical Fitness Test (APFT) and his discharge from the Army was not a fair and just representation of his time in service.  He further states he was told to wait 4 years and then he could reenter military service; however, in attempting to do so, he was told he would not be allowed to reenter military service because of his reason for separation.  The applicant indicates he received a Bachelor's Degree in Criminal Justice and a Master in Educational Psychology since leaving the military and he has no criminal record.

3.  The applicant provides:

* his DD Form 257A (General Discharge Certificate)
* his DD Form 214
* a DA Form 4187 (Personnel Action), dated 21 September 1992 (advancement to specialist)
* his college transcript


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 15 August 1990.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).  

3.  The applicant's official military personnel file (OMPF) contains two DA Forms 705 (APFT Scorecard) that show he failed the APFT on 30 October 1992 and on 4 December 1992.  His record also contain two DA Forms 4856 (General Counseling Form) that were administered as a result of his failed APFTs.  In the DA Form 4856, dated 3 November 1992, the applicant acknowledged his APFT failure and mandatory retest date of 3 February 1993; however, he requested to be retested on 4 December 1992.  In the DA Form 4856 administered on
8 December 1992, he acknowledged his 4 December 1992 failed APFT retest.  He was advised of the involuntary separation action that could be initiated against him.

4.  A DA Form 4126-R (Bar to Reenlistment Certificate) was initiated on the applicant based on his two consecutive failed APFTs.  On 9 December 1992, he acknowledged that he was furnished a copy of his commander's recommendation, that he was counseled and advised of the basis for the action, and that he did not desire to submit a statement in his own behalf.  On
10 December 1992, the appropriate authority approved the bar to reenlistment action.  On 11 December 1992, the applicant was advised of the approved bar to reenlistment and of his right to appeal the action.  He elected not to appeal the bar to reenlistment.



5.  On 21 December 1992, the applicant's unit commander recommended his separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The reason for the proposed action was "Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier."

6.  On 22 December 1992, the applicant consulted with legal counsel and he was advised on the basis for separation for unsatisfactory performance and the possible effects and the rights available to him in the contemplated administrative separation cases.  He requested military counsel and he elected not to submit statements in his own behalf.

7.  On 22 December 1992, the unit commander recommended the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, based on the applicant's failed two APFTs and his assessment that the applicant will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  On 30 December 1992, the intermediate commander recommended approval of the separation action.

8.  On 15 January 1993, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, with a General Discharge Certificate.

9.  On 26 January 1993, the applicant was accordingly discharged in the rank/grade of specialist four (SP4)/E-4 under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  Item 26 (Separation Code) shows the entry "JHJ."  He completed 2 years, 5 months, and 12 days of creditable active service.

10.  There is no evidence of record and the applicant did not provide any evidence that shows he suffered any medical limitation that would have prevented him from passing the APFT.

11.  On 9 June 1993, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his general discharge and change to his narrative reason for separation.  On 12 February 1996, the ADRB determined his discharge was both proper and equitable and voted not to upgrade his characterization of service or change his narrative reason for separation.  The applicant was advised of the results of the ADRB action by letter, dated 15 March 1996.



12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 states that initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the APFT.  The regulation requires that separation action be taken when in the 
commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation is characterized as honorable or under honorable conditions.

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) 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 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's requests for upgrade of his discharge and removal of his unsatisfactory performance narrative reason for separation were carefully considered; however, there was insufficient evidence to support this request.

2.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The evidence of record confirms the applicant was separated for unsatisfactory performance based on two consecutive APFT failures.  
Therefore, the applicant is not entitled to an honorable discharge or a change to his narrative reason for separation.



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)                                         AR20100029484



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ABCMR Record of Proceedings (cont)                                         AR20100029484



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