IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110017241 


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 his military discharge be revoked on the grounds that it was improper and inequitable. 

2.  The applicant states:

* He was involuntarily discharged under Army Regulation 635-200 (Enlisted Personnel -Separations), chapter 13, for unsatisfactory performance for an incident in which he lost his weapon during a field exercise
* He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and a bar to reenlistment
* The separation proceedings initiated against him were due to his inability to overcome a bar to reenlistment
* He believes the discharge under chapter 13 should be revoked since he only had one lapse in duty performance and not a pattern of consistent unsatisfactory performance
* During his review periods to overcome his bar to reenlistment all of his counseling statements we average or above
* His legal counsel wrote a memorandum stating that based on his performance the bar to reenlistment should have been lifted, and because of this could not be used as a basis for separation action
* He met with his battalion commander to discuss his situation and plead his case.  His battalion commander stated, "there is no way he was going to remove the bar to reenlistment"
* After their meeting his battalion commander changed his recommendation for the character of service from a general discharge to an honorable discharge

3.  The applicant provides:

* Separation packet
* Bar to reenlistment and subsequent reviews
* 8 counseling statements
* Article 15
* Memorandum from legal counsel
* Army Achievement Medal 
* Reassignment orders
* DA Form 2-1 (Personnel Qualification Record)
* Part of an enlistment contract
* DA Form 4187 (Personnel Action)
* Résumé
* 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 3 October 1990.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  He was assigned to the 5th Battalion, 6th Infantry Division, Fort Polk, LA from 31 March 1991 to 
17 November 1992.

3.  His records contain four DA Forms 4256 (General Counseling Forms) ranging in date from 15 June 1991 to 5 December 1991.  The first form noted his only 

deficiency was a tendency to question orders and sarcasm, but he was considered to be a successful Soldier otherwise, and it appears he corrected this deficiency.  The counseling forms also show he was considered to be dependable, hard working, and technically proficient.  

4.  His records contain a DA Form 638-1 (Recommendation for Award (For other than Valor) of Army Achievement Medals (AAM), Army Commendation Medal (ARCOM), and Meritorious Service Medal (MSM)).  This form, dated 
26 September 1991, shows he was recommended for and received an AAM for meritorious service and performance of duty while serving as a medical specialist. 

5.  On 22 January 1992 he received a DA Form 4256.  The counseling form states he was being considered for separation under Army Regulation 635-200, chapter 13, for "conduct unbecoming a Soldier."

6.  On 15 February 1992, in a closed hearing, he accepted NJP under the provisions of Article 15 of the UCMJ for violating Article 108 of the UCMJ, by losing his M-16 rifle through neglect, on 17 January 1992.  

7.  His records contain a DA Form 4126-R (Bar to Reenlistment Certificate).  The form was initialed by the applicant, on 31 January 1992, indicating he had been counseled on the basis of the bar to reenlistment and did not desire to appeal the bar to reenlistment.  His commander approved and signed the bar to reenlistment, on 25 February 1992.  

8.  The bar to reenlistment was imposed due to his unsuitability for further military service.  Specifically his inability to keep his weapon secure, which resulted in his unit being placed on alert to conduct a search for the weapon.  The form further stated the bar to reenlistment would not be lifted or removed unless warranted and could result in his separation from military service.

9.  His records contain a Standard Form (SF) 93 (Report of Medical History), an SF 88 (Report of Medical Examination), and a DA Form 3822-R (Report of Mental Status Evaluation).  These forms show he received pre-separation medical and mental evaluations, on 19 February 1992, and was found fit to participate in separation proceedings.

10.  His records contain three DA Forms 4256 ranging in date from 5 March 1992 to 29 May 1992.  These forms show marked progress in his personal and 
professional performance.  His squad leader stated:


* He is a good Soldier
* He had shown great improvement in his job and was an asset 
* His appearance was sharp
* He shows great maturity in his dealings with his superiors
* He has truly excelled showing noting but progress in all areas
* He is a great asset to himself and his superiors

11.  His records contain two memoranda, dated 29 April 1992 and 31 July 1992, reviewing his bar to reenlistment.  The first memorandum shows the commander decided to leave the bar to reenlistment in effect for a subsequent 3 month period.  The second memorandum shows the commander decided to leave the bar to reenlistment in effect and initiate separation proceedings in accordance with (IAW) chapter 13 of Army Regulation 635-200.

12.  On 24 September 1992, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, for failing to overcome his bar to reenlistment and informed him of his rights.  On this same day, the applicant acknowledged receipt of the notification.

13.  On 24 September 1992, he consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a general under honorable conditions discharge, and the rights available to him.  He did not indicate whether or not he intended to submit statements in his own behalf. 

14.  On 26 September 1992, the applicant's legal counsel, a judge advocate officer, sent a memorandum to his commander stating:

	a.  the "administrative separation proceedings initiated by [the commander] IAW Army Regulation 635-200, chapter 13 [were] legally insufficient and unsupported.  The documents supporting [the applicant's] separation indicate [he] performed in a satisfactory manner since his initial bar to reenlistment was imposed.  To suggest that the bar to reenlistment should remain in effect for the same incident without regard to the Soldier's performance during the review period directly contradicts the intention and meaning of Army Regulation 601-200 (Personal Procurement-Army Reenlistment Program).  Further, to initiate separation action based on a failure to overcome such a bar is inconsistent with Army Regulation 635-200, chapter 13";

	b.  counsel further stated in this memorandum, that during a phone conversation the commander indicated to counsel "it was [his] opinion [the 

applicant] did not possess the mental bearing to continue in the U.S. Army [and that] there was more to this Soldier losing the weapon than was in the separation file."  Counsel then reminded the commander that he was bound by the standards established in Army regulations and the case must be reviewed by the standards set fourth Army Regulation 601-208 (Army Reenlistment Program and Army Regulation 635-200; 

	c.  counsel noted Army Regulation 635-200 states "Soldiers have a right to review all documents and evidence which may be used against them in a separation action.  Thus, [the commander] as the reviewing commander, must limit the evidence considered to the documentation within the packet"; and

	d.  counsel added, "all Soldier's deserve due process under U.S. Army guidelines set forth in Army regulations.  [The applicant] should not be separated based on this unsupported and illegal action.  If [the commander's] decision is to continue with this separation action, and since [the applicant] is not entitled to a separation board hearing, [counsel requests] [the applicant] be given a fair and impartial ruling by a detached and neutral superior commander."

15.  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 received an honorable discharge.  On 
17 November 1992, the applicant was discharged accordingly. 

16.  His DD Form 214 confirms he was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200 with an honorable character of service.  The separation code listed in item 24 (Separation Code) is listed as "JHJ".  Item 28 (Narrative Reason for Separation) of his DD Form 214 is listed as "unsatisfactory performance".  This form further shows he completed 2 years, 1 month, and 17 days of net active service during this period of active duty.  The highest rank/grade he attained during his military service was private first class/E-3.

17.  He provided reassignment orders, a DA Form 2-1, part of his enlistment contract, a DA Form 4187, and his résumé as evidence in this case.

18.  Army Regulation 635-200, Chapter 13, states that a Soldier may be separated per this chapter when it is determined that he or she is unqualified for 
further military service because of unsatisfactory performance.  Unsatisfactory performance includes Soldiers who, in their commander's judgment, will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier; the Soldier's retention would have an adverse impact on military discipline, good order, and morale; it is likely that the Soldier will be a disruptive influence in present or future duty assignments; it is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur; or the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 

19.  Army Regulation 635-5-1 (Separation Program Designators) states that separation codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of separation codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense and the military services to assist in the collection and analysis of separation data.  It notes that “JHJ” is the appropriate code for individuals separated for unsatisfactory performance.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument that his discharge under chapter 13 should be revoked since he only had one lapse in duty performance and not a pattern consistent with unsatisfactory performance and on the grounds the separation was improper and inequitable has been considered.  

2.  There is no evidence of record and the applicant has not provided any evidence to show he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights were not fully protected throughout the separation process.

3.  The memorandum written by his counsel was considered.  However, Army Regulation 635-200, chapter 13, states that a Soldier may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  

4.  Even though the counseling statements subsequent to his bar to reenlistment were favorable, the regulation gives commanders the authority to exercise their own judgment in determining whether or not they feel a Soldier will develop sufficiently or if retention would have an adverse impact on military discipline, good order, and morale.

5.  There is no evidence, nor has the applicant provided evidence to show his separation was administratively incorrect or that his commander was unjust, or unfair in his consideration of the evidence in the separation packet.  In view of the foregoing, he is not entitled to 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)                                         AR20110017241





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ABCMR Record of Proceedings (cont)                                         AR20110017241



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