IN THE CASE OF:	  

		BOARD DATE:  2 February 2012

		DOCKET NUMBER:  AR20110015315 


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 upgrade of his general under honorable conditions discharge to an honorable discharge.  

2.  He states:

* his discharge was unjust because he served almost 4 years of his tour
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) is incorrect because there was no unsatisfactory performance on his part
* a representative from the Department of Veterans Affairs (VA) told him that his DD Form 214 was incorrectly encoded 

3.  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 24 September 1987 for a period of 4 years.  His highest grade attained was specialist/E-4.  He served in Germany from 20 August 1989 through 31 October 1990.  

3.  A review of his service record revealed he was counseled on numerous occasions in reference to:   

* failing the Army Physical Fitness Test
* writing a check without sufficient funds
* failing to maintain his living area
* being absent from his appointed place of duty
* having a personality disorder
* losing government property
* failing to obey an order from a noncommissioned officer
* being not recommended to appear before E-5 promotion board

4.  On 21 September 1990, the unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  He was advised of his rights.  He acknowledged notification of separation action, consulted with legal counsel, and elected to submit statements in his own behalf.  His statements are not available.  

5.  On 7 October 1990, the separation authority waived rehabilitation requirements and directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  

6.  On 1 November 1990, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed 3 years, 1 month, and 8 days of active military service.

7.  His DD Form 214 shows the following entries in:

* Item 24 (Character of Service) “UNDER HONORABLE CONDITIONS (GENERAL)”
* Item 25 (Separation Authority) “AR 635-200, CHAPTER 13”
* Item 26 (Separation Code) “LHJ”
* Item 28 (Narrative Reason for Separation) “UNSATISFACTORY PERFORMANCE”
8.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or statuary directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The version of the regulation in effect at the time stated the SPD code of "LHJ" (as shown on the applicant's DD Form 214) was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 13 by reason of unsatisfactory performance.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention his discharge was unjust is acknowledged.  However, the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  He contends there was no unsatisfactory performance.  However, his service record contains numerous adverse counseling statements for his inability to meet Army standards.  

3.  He also contends that a VA representative told him his DD Form 214 was incorrectly encoded.  However, his service record is void of evidence and he has not provided any evidence which supports this claim.  Based on Army Regulation 635-5-1, his DD Form 214 reflects the proper codes.  

4.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a fully honorable discharge and characterized his service as general under honorable conditions.  He has not presented sufficient evidence which warrants changing his general discharge to a fully honorable discharge.

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)                                         AR20110015315





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ABCMR Record of Proceedings (cont)                                         AR20110015315



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