BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110022807 


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 the following changes be made to his DD Form 214 (Certificate of Release or Discharge from Active Duty):

* Item 16 (Days Accrued Leave Paid) be applied to his net active service so he can have 24 months of active service
* Item 24 (Character of Service) upgraded from under honorable conditions (general) to fully honorable
* Item 25 (Separation Authority) change from chapter 13, Army Regulation (AR) 635-200 to chapter 17 or 16-5, AR 635-200

2.  The applicant states he received one field grade Article 15 in the Army for a positive urinalysis (marijuana) and no other Article 15.  He was flagged and barred from reenlistment.  He completed his punishment and lasted one year after that.  He should have been transferred to another unit to complete his time.  He was mistreated and he was unable to advance in rank.  Someone tried to kill him in the field.  It has now been over 17 years since his discharge and it is time for a fully honorable discharge.

3.  The applicant did not provide any 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 10 February 1994 and held military occupational specialty 11M (Fighting Vehicle Infantryman).  He was assigned to the 1st Battalion, 41st Infantry, Fort Hood, TX.  The highest rank/grade he attained was private/E-2.

3.  On 18 January 1995, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for wrongfully using marijuana.

4.  On 7 March 1995, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his wrongful use of illegal drugs.  The applicant was provided with a copy of this bar but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the approval authority. 

5.  His records show he was frequently counseled by members of his chain of command for various infractions including:

* Poor performance
* Failure to follow instructions
* Disrespect and insubordination
* Failure to pay bills
* Failure to be at his appointed place of duty
* Substandard appearance
* Lack of motivation and negative attitude
* Improper uniform
* Multiple instances of failure to report

6.  On 16 November 1995, his immediate commander notified him of his intent to initiate separation action against him in accordance with AR 635-200 (Personnel Separation), chapter 13, due to unsatisfactory performance with a general discharge.  The immediate commander stated the discharge was recommended because of the applicant's wrongful use of drugs, continuous pattern of failure to repair, disrespect, and failure to obey orders.  

7.  On 17 November 1995, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and elected not to submit a statement on his own behalf.  He further acknowledged that he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he might be ineligible for many or all of the benefits as a veteran under both Federal and State laws.

8.  On 21 November 1995, his immediate commander initiated separation action against him in accordance with AR 635-200 by reason of unsatisfactory performance.  The immediate commander made similar remarks to those he made in the notification memorandum and added that rehabilitation was not in the best interest of the Army as it would not produce a quality Soldier.

9.  On 27 November 1995, his intermediate commander recommended approval of the discharge with the issuance of a General Discharge Certificate.

10.  On 30 November 1995, the separation authority approved the applicant's discharge under the provisions of AR 635-200 by reason of unsatisfactory performance with a general discharge.  Accordingly, the applicant was discharged on 22 December 1995.  The DD Form 214 he was issued shows he completed 1 year, 10 months, and 13 days creditable military service.  Additionally: 

* Item 16 shows he was paid for 44.5 days of accrued leave
* Item 25 shows the entry "AR 635-200, Chapter 13"
* Item 26 shows the entry "JHJ"
* Item 28 shows the entry "Unsatisfactory Performance" 

11.  On 19 February 1997, the Army Discharge Review Board reviewed his discharge and found it proper and equitable.  Accordingly, it denied his petition for an upgrade. 

12.  AR 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, in pertinent part, 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.  Paragraph 3-7a of this regulation 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.

13.  Chapter 16 of AR 635-200 provides for various/selected changes in service obligation, including discharge for acceptance into a commissioned officer program, non-retention on active duty, disqualification in specialty, reduction in force, holiday early release program, and others.  Additionally, chapter 17 of the regulation currently in effect provides for the benefits of an honorable discharge. 

14.  AR 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 of "JHJ" is the correct code to be assigned to Soldiers discharged under chapter 13 of AR 635-200.

15.  AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge, and is not intended to have any legal effect on termination of a Soldier's service.  Item 16 shows the number of days of accrued leave being paid to the Soldier at time of separation.

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 standards.  Accordingly, his commander initiated separation action against him.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  Based on his record of substandard performance and/or indiscipline, his service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

3.  The evidence of record confirms the narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 13 of Army Regulation 635-200 due to unsatisfactory performance.  Absent the unsatisfactory performance, there was no fundamental reason to process him for separation.  The underlying reason for his discharge was his unsatisfactory performance.  The only valid narrative reason for separation permitted under this paragraph is "Unsatisfactory Performance."

4.  The applicant was paid monetary compensation for 44.5 days worth of accrued leave at the time of his discharge.  He no longer had any leave and is thus not entitled to adjustment of his separation date to add the accrued leave. 

5.  The applicant was discharged under the appropriate separation authority and he was assigned the appropriate authority for separation as well as the appropriate narrative reason for separation.  In view of the foregoing, there is insufficient evidence to grant him 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)                                         AR20110022807





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110022807



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1