IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110012479 


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 item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states the narrative reason for his separation is stated as "unsatisfactory performance," but he did his duties without any reprimands.  He was discharged from the Army for being overweight and not passing the Army Physical Fitness Test (APFT).  His wife died last year and he is a single father trying to buy a home with his Department of Veterans Affairs (VA) benefit.

3.  The applicant provides his DD Form 214 and a death certificate.

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's records show he enlisted in the Regular Army on 23 January 1990 and he held military occupational specialty 63B (Light Vehicle Mechanic).

3.  Between October 1990 and November 1991, he was frequently counseled by several members of his chain of command for repeated failure to maintain his clothing and equipment, repeated failure to be at his appointed place of duty, failure to obey lawful orders, failure to secure his military equipment, substandard attitude, and failure of the APFT.

4.  On 7 October 1991, his immediate commander recommended that the applicant be barred from reenlistment.  The commander cited the applicant's failure of two consecutive APFT's and apathetic attitude, and stated the applicant walked a fine line in the performance of his duties.  He also stated his attitude had become a hindrance to his fellow Soldiers.  On 9 October 1991, the bar to reenlistment was approved by the chain of command and placed in his records.

5.  On 18 December 1991, he was notified by his immediate commander that discharge action was being initiated against him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13.  The commander stated the specific reasons were his repeated failure of the APFT and his bar to reenlistment.  The commander also stated he was recommending the applicant receive a general discharge.

6.  On 18 December 1991, he acknowledged receipt of the notification of his proposed discharge action.  On 20 December 1991, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a general discharge, and of the procedures and rights that were available to him.  He further acknowledged he understood if he were issued a general discharge under honorable conditions he could expect to encounter substantial prejudice in civilian life.  He also acknowledged he understood if he were issued a discharge certificate that was less than honorable, he could apply for an upgrade to the Army Discharge Review Board (ADRB) or the ABCMR, but that an act of consideration by either board did not imply that his discharge would be upgraded.  He elected not to submit a statement in his own behalf.

7.  The separation authority subsequently approved his discharge for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate.  On 10 January 1992, he was discharged accordingly.

8.  The DD Form 214 he was issued confirms he was discharged with an under honorable conditions character of service by reason of unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He completed 1 years, 11 months, and 18 days of creditable active service.

9.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code "JHJ" is the correct code for Soldiers separating under Army Regulation 635-200, chapter 13, and "unsatisfactory performance" is the corresponding entry for the narrative reason for separation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was counseled numerous times for repeated failure to maintain his clothing and equipment, repeated failure to be at his appointed place of duty, failure to obey lawful orders, failure to secure his military equipment, substandard attitude, and repeated failure of the APFT.  A bar to reenlistment was placed against him for failure of two consecutive APFT's and his apathetic attitude and was the reason his immediate commander cited for recommending him for discharge action for unsatisfactory performance.

2.  His narrative reason for separation was assigned based on his separation under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance.  This is the only valid narrative reason for separation permitted under that paragraph.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His narrative reason for separation is correctly shown on his DD Form 214.  Therefore, there is no basis for granting the applicant's requested relief.

3.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

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)                                         AR20110012479



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ABCMR Record of Proceedings (cont)                                         AR20110012479



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