IN THE CASE OF:	  

		BOARD DATE:	    7 July 2011

		DOCKET NUMBER:  AR20110000398 


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:

* the narrative reason for his discharge be changed
* his rank and grade be changed

2.  He states:

* he is debating the narrative reason for his separation and his loss of rank
* he was young and under a lot of pressure from his wife and mother of his children
* he explained to his commander that he had lost interest in the military and wanted to be chaptered out
* he received two Article 15s under the Uniform Code for Military Justice (UCMJ)
* his performance was not an issue
* he knew he made bad decisions, but his service in the Ohio Army National Guard (OHARNG) made up for those decisions
* he was a specialist (SPC/E4)
* he is currently a federal corrections guard

3.  He provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Army)
* 
his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* his Honorable Discharge Certificate
* a memorandum from the U.S. Department of Justice
* a character reference letter

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 was born on 5 July 1973.  He enlisted in the Regular Army on 29 October 1991 at the age of 18 years, 3 months, and 24 days.

3.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  The evidence does include a properly constituted DD Form 214 that shows in:

* Items 4a and 4b (Grade, Rate, or Rank) (Pay Grade) the entry PFC [private first class] and E3, respectively
* Item 12a (Date Entered Active Duty This Period) the entry "1991  10  29" [29 October 1992]
* Item 12b (Separation Date This Period) the entry "1994  09  19"
[19 September 1994]
* Item 12c (Net Active Service this Period) the entry "0002  10  21" [2 years, 10 months, and 21 days]
* Item 25 (Separation Authority) the entry "Army Regulation 635-200 [Personnel Separations - Enlisted Personnel], chapter 13 [Separation for Unsatisfactory Performance]"
* Item 26 (Separation Code) the entry JHJ
* Item 27 (Reentry (RE) Code) the entry RE-3
* 
Item 28 (Narrative Reason for Separation) the entry Unsatisfactory Performance

4.  He submitted an NGB Form 22 that shows he enlisted in the OHARNG on 28 March 2003 and he served until he was honorably discharged on 27 March 2005 by reason of expiration of active guard commitment and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  Item 5 (Rank) shows he was a PFC/E3.

5.  He submitted an Honorable Discharge Certificate that shows he was honorably discharge from the USAR on 6 May 2008 in the rank of PFC.

6.  He submitted a memorandum from the U.S. Department of Justice, dated 27 January 2010, that shows he had a favorable background investigation.

7.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  The character reference letter he submitted from his minister noted that he is an upstanding citizen and a devoted father of three who is now a stronger and wiser man.

9.  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.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted
DD Form 214 that identifies the authority, reason, and the characterization of the applicant's service.

2.  His record shows he was over 18 years of age at the time of his enlistment and he was 21 years of age at the time of his discharge.  However, there is no evidence that indicates his family matters or age contributed to his unsatisfactory performance.  There is no justification or reason to change the applicant's narrative reason for separation as his separation was based on unsatisfactory performance or to remove the narrative reason for his separation from his DD Form 214.

3.  His available records show he was a PFC/E3 prior to his separation from active duty on 19 September 1994.  There is no evidence of record and the applicant did not provide any evidence that shows he attained a higher rank/grade at the time of his discharge from active service or during his service in the ARNG or the USAR.

4.  The character references provided by the applicant documenting his good post-service conduct are noteworthy.  However, they alone are not sufficiently mitigating to support a change in the narrative reason for his discharge or his grade.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110000398



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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