IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110003626 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* he was discharged in the rank/grade of sergeant (SGT)/E-5 
* upgrade his general discharge (GD) to an honorable discharge (HD), change his reenlistment (RE) code, and narrative reason for separation

2.  He states his narrative reason for separation is shown as "unsatisfactory performance," but this is contradicted by the awards that are listed in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) and item 14 (Military Education) of his DD Form 214.  He also states that he was a SGT/E-5 when he was discharged. 

3.  He states at the time of his discharge he was to be transferred to Fort Smith, AR for 4 years, but his first sergeant (1SG) withdrew his orders.  He went to the division command sergeant major, who told him if he wanted to go home upon his expiration term of service (ETS) and come back in less than a year, he would assist him.  He took the offer.  He believed his 1SG called the assistant adjutant general to have negative entries placed on his DD Form 214.  He did not have a reason to look at the form until 2 years ago when he was applying for college. 

4.  He provides his DD Form 214.



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 January 1985.  

3.  His record shows he received counseling on 11 January 1989 for missing physical training (PT) formation, on 25 January 1989, he missed "a few formations," and he was late for work "a number of times."

4.  On 2 February 1989, the applicant received quarterly counseling.  The counselor indicated he believed the applicant's problem with missing formation had been resolved and he stated that he was pleased with the applicant's overall performance.

5.  On 6 February 1989, he received counseling for missing PT formation.

6.  On 10 February 1989, he received counseling praising him for his performance on a PT test and he was reminded to continue to strive to do his best.

7.  On 28 April 1989, he received monthly counseling.  The counselor noted the applicant's improvement in several areas.  The counselor also stated the applicant's attitude towards the military fluctuated too much.  The applicant was reminded of the need to be flexible, and the need to better supervise his personnel while in garrison.

8.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) shows he received nonjudicial punishment (NJP) for being absent without leave (AWOL) from 21 to 27 June 1989 and striking R_____ M. W_____ [his wife] on the face on 5 June 1989.  His punishment was reduction to SPC/E-4.  He did not appeal.

9.  Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record) shows he was reduced from SGT/E-5 to specialist (SPC)/E-4 on 30 June 1989.

10.  On 29 June 1989, the applicant's commander informed the applicant of his intent to initiate action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, and that he could receive a GD as a result of this action.  

11.  He consulted with counsel, who advised him of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He elected not to submit statements on his own behalf and indicated he understood that he could expect to encounter substantial prejudice in civilian life if he received anything other than an HD.

12.  On 30 June 1989, the separation authority approved his separation action and directed the issuance of a General Discharge Certificate.  On the same date, he was discharged accordingly.

13.  His DD Form 214 shows in:

* item 4a (Grade, Rate or Rank) - SP4
* item 4b (Pay Grade) - E-4
* item 13:

* Expert Marksmanship Qualification Badge with Rifle Bar
* Air Assault Badge
* Parachutist Badge
* Army Service Ribbon
* Noncommissioned Officer Professional Development Ribbon
* Army Good Conduct Medal (1st Award)
* Army Achievement Medal
* Army Commendation Medal
   
* item 14 - Primary Leadership Development Course
* item 24 (Character of Service) - under honorable conditions (general)
* item 25 (Separation Authority) - Army Regulation 635-200 Chapter 13
* item 26 (Separation Code) – "JHJ (JKJ)"
* item 27 (RE Code) - RE-3
* item 28 (Narrative Reason for Separation) - unsatisfactory performance

14.  He signed his DD Form 214 in item 21 (Signature of Member Being Separated), indicating he had reviewed the information on the form.

15.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  

	a.  Chapter 13 of this regulation 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.

   b.  Paragraph 3-7a provides that an HD 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.

16.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states for item 28 to enter the reason for separation shown in Army Regulation 635-5-1 (Personnel Separations - Separation Program Designators (SPD)) based on the regulatory or statutory authority.

17.  The version of Army Regulation 635-5-1 in effect at the time stated "unsatisfactory performance" was the narrative reason for separation for Soldiers separated under the provisions of Army Regulation 635-200, chapter 13.  It stated Soldiers separated for this reason would also receive the SPD codes of "JHJ (JKJ)."

18.  The SPD/RE Code Cross Reference Table in effect at the time shows an 
RE code of "3" was assigned to individuals separated for unsatisfactory performance when an SPD code of "JHJ" was assigned.  



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was reduced to SPC/E-4 as a result of NJP.  He did not appeal this punishment and he was discharged the same day he was reduced to SPC/E-4, precluding any opportunity for him to regain the rank/grade of SGT/E-5.  The record does not show and he has not provided evidence showing his reduction was improper.  Therefore, he is not entitled to correction of his DD Form 214 to show his rank/grade as SGT/E-5.  

2.  His decorations and military education are noted.  It appears his performance was satisfactory prior to the series of incidents leading to his discharge; however, the record shows he did not maintain a satisfactory level of performance.  

3.  The available documentation does not support his allegation that his 1SG had negative information placed on his DD Form 214.  The record shows he acknowledged he understood the type of discharge he would receive and the consequences of such a discharge.  

4.  His discharge for unsatisfactory performance was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Because he was separated under the provisions of Army Regulation 635-200, chapter 13, his DD Form 214 properly shows "unsatisfactory performance" as the narrative reason for separation and an RE code of "3."

5.  Based on his record of indiscipline, which includes NJP for being AWOL, assault, missing formation, and being late for duty, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service insufficiently meritorious to warrant an HD.  Therefore, he is not entitled to an HD.

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)                                         AR20110003626



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ABCMR Record of Proceedings (cont)                                         AR20110003626



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