BOARD DATE:	5 January 2012

		DOCKET NUMBER:  AR20110012232


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  In effect, he requests correction of item            28 (Narrative Reason for Separation) to show he was discharged for medical reasons instead of "unsatisfactory performance." 

2.  The applicant states he was supposed to be discharged with a medical discharge; however, he believed at the time that a medical discharge would affect his honorable status so he chose not to accept it.  Because of his refusal to accept a medical discharge, the Army gave him an honorable discharge, by reason of unsatisfactory performance.

3.  The applicant provides no additional evidence.

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 9 December 1977.  He completed training and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).  The highest rank/grade he attained during his military service was specialist four/E-4.  

3.  His record shows he was formally counseled by members of his chain of command on at least eleven separate occasions, between 29 July 1983 and     10 November 1983, for a myriad of performance and conduct related matters, including failure to report for morning formation and failure to make sufficient progress in the Army weight control program.

4.  On 27 October 1983, the applicant's immediate commander notified him of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  His immediate commander cited, as his reason for the proposed separation action, the applicant's inability to meet the body fat standards of Army Regulation 600-9 (The Army Weight Control Program).

5.  On 27 October 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general under honorable conditions discharge was issued to him.  On 28 October 1983, the applicant acknowledged receipt of the separation memorandum.  

6.  On 8 November 1983, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance, for failure to meet the body fat standards imposed by Army Regulation 600-9.  

7.  On 10 November 1983, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed he receive an Honorable Discharge Certificate.  

8.  On 18 November 1983, he was discharged accordingly.  His DD Form 214 confirms he completed 5 years, 11 months, and 10 days of net active service during this period of active duty.  His DD Form 214 further shows:
* Item 24 (Character of Service) he was given an honorable characterization of service
* Item 25 (Separation Authority) he was discharged under the provisions of Army Regulation 635-200, chapter 13
* Item 28 he was discharged for unsatisfactory performance

9.  His record contains no indication he suffered an injury or illness, either physical or psychological, which would have warranted his referral to the Physical Disability Evaluation System (PDES).

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

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 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.

12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The regulation states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army weight control standards.  Accordingly, his immediate commander initiated separation action against him.

2.  The evidence shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  
3.  The applicant contends his DD Form 214 should be corrected to show some other narrative reason for separation, other than unsatisfactory performance.  The applicant was discharged because of his inability to meet Army weight control standards, which is classified by the Army as unsatisfactory performance. His record contains no evidence of other issues that may have resulted in discharge; therefore, there is no other, more appropriate narrative reason for separation than the one he was given.

4.  In view of the foregoing, there is an insufficient basis to grant relief in this case. 

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)                                         AR20090011583



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ABCMR Record of Proceedings (cont)                                         AR20110012232



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