IN THE CASE OF:	  

		BOARD DATE:	    18 April 2012

		DOCKET NUMBER:  AR20110020090 


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 item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to something other than unsatisfactory performance.

2.  He states this narrative reason for separation of unsatisfactory performance did not appear on any prior DD Form 214 he used.  He received certificates of eligibility for Department of Veterans Affairs (VA) loans in the past and doesn't understand why the Bank of America has denied him a home loan due the wording of "unsatisfactory performance" on his DD Form 214.

3.  He provides his DD Form 214, two VA certificates of eligibility, three VA letters, and a National Personnel Records Center letter.

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.  He enlisted in the Regular Army on 16 February 1982.

3.  On 2 April 1983, he was convicted by a summary court-martial, pursuant to his guilty plea, of wrongfully pawning duty-free goods to a person not entitled to duty-free import privileges.

4.  On 4 May 1983, the applicant's commander notified him that he was initiating action to separate him from the U.S. Army under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations).  The reasons for the proposed action were: the applicant's unfitness for further military service, and that his actions within the unit had hurt the morale within the unit and caused mutual mistrust and loss of confidence among other members of the unit.  He was advised of his rights.

5.  On 5 May 1983, he acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to separate him for unsatisfactory performance under Army Regulation 635-200, Chapter 13 and its effects; of the rights available to him; and of the effect of any action taken by him in waiving his rights.

6.  On 12 May 1983, the separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13.  He further directed the applicant be given a general discharge.

7.  His DD Form 214 shows that on 18 May 1983 he was discharged, with an under honorable conditions characterization of service, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He was given a separation code of JHJ.  His DD Form 214 shows he completed 1 year, 2 months, and 21 days of active service with 12 days time lost.

8.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to unsatisfactory performance when it was clearly established that:

   a.  in the commander's judgment, the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier, or;
   
   b.  the seriousness of the circumstances was such that the member's retention would have an adverse impact on military discipline, good order, and morale, and;
   
   c.  it was likely that the member would be a disruptive influence in present or future duty assignments, and;
   
   d.  it was likely that the circumstances forming the basis for initiation of separation proceedings would continue or recur, and;
   
   e.  the ability of the member to perform duties effectively in the future, including potential for advancement or leadership, was unlikely.

9.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)), in effect at the time, stated the reason for discharge based on separation code JHJ was unsatisfactory performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the narrative reason for separation of unsatisfactory performance did not appear on any prior DD Form 214 he used in acquiring VA loans is noted.  However, the evidence shows he was properly discharged for unsatisfactory performance. 

2.  In view of the fact he was involuntarily discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, his narrative reason for separation was and still is appropriate.  As such, there is no evidence of an error in assignment of his reason for separation or separation code.
  
3.  The Army only provides the documentation/data for a Soldier's records but the VA administers its programs.  That he may have previously acquired VA guaranteed loan(s) or may be denied a VA guaranteed loan from a financial institution does not affect the accuracy of his narrative reason for separation of unsatisfactory performance shown on his DD Form 214.

4.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20110020090



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ABCMR Record of Proceedings (cont)                                         AR20110020090



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