BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110003573 


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 a change to the narrative reason for separation listed in item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

2.  The applicant states the reason for his separation on his DD Form 214 is listed as unsatisfactory performance when in fact the reason for his discharge was failure of the Army Physical Fitness Test (APFT).

3.  The applicant provides no documentary evidence in support of 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 22 October 1985.  He was trained in and awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  He was promoted to the rank/grade of sergeant (SGT)//E-5 on 1 July 1989, and this is the highest rank/grade he held and served in while serving on active duty.

3.  On 13 November 1991, the applicant was counseled regarding his APFT failure.  During this counseling, the applicant was advised that additional APFT failures could result in separation action.

4.  On 13 December 1992, the applicant was counseled regarding a second consecutive APFT failure.  During this counseling, the applicant was informed a bar to reenlistment action would be initiated and that if he failed the APFT again with no medical reason he would be recommended for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13.

5.  On 20 March 1992, the applicant was counseled regarding his third consecutive APFT failure.  During this counseling, the applicant was advised that separation action would be initiated against him under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance based on his APFT failures.

6.  On 1 June 1992, the applicant's unit commander notified him that he was initiating action to separate him under the provisions of Army Regulation
635-200, chapter 13 for unsatisfactory performance based on his APFT failures on three consecutive occasions.

7.  The applicant consulted with legal counsel and he was advised of the basis of the contemplated action to separate him for unsatisfactory performance and its effects; of the rights available to him; and of the effect of any action taken by him in waiving his rights.  Subsequent to this counseling, the applicant waived his right to have his case considered by and his personal appearance before an administrative separation board; his right to have a minority member sit on the administrative separation board; and his right to representation by counsel.

8.  On 8 June 1992, the separation authority approved the applicant’s discharge for unsatisfactory performance and directed the applicant receive an honorable discharge.  On 14 July 1992, the applicant was discharged accordingly. 


9.  The DD Form 214 the applicant was issued at the time confirms he was honorably discharged, in the rank/grade of SGT/E-5, after completing 6 years,
8 months, and 23 days of creditable active service.  His DD Form 214 further shows in:

* item 25 (Separation Authority) the entry of Army Regulation 635-200, chapter 13
* item 26 (Separation Code) the entry "LHJ"
* item 28 the entry "unsatisfactory performance"

10.  There is no evidence indicating the applicant applied to the Army Discharge Review Board for a change to the reason for his discharge within that board’s 
15-year statute of limitations.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 states in pertinent part that initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the Army Physical Fitness Test, unless the responsible commander chooses to impose a bar to reenlistment per Army Regulation 601-280 (Total Army Retention Program).  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.

12.  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 LHJ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, by reason of unsatisfactory performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change the narrative reason for separation contained in item 28 of his DD Form 214 has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant’s separation under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance was accomplished in accordance with the applicable regulation 


based on his three consecutive failures of the APFT.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Absent any evidence of an error or injustice in the applicant’s separation processing, there is an insufficient evidentiary basis to support granting 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)                                         AR20110003573



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ABCMR Record of Proceedings (cont)                                         AR20110003573



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