IN THE CASE OF:	  

		BOARD DATE:  10 July 2012

		DOCKET NUMBER:  AR20120000565 


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 correction to Item 25 (Separation Authority) and Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 July 1992.

2.  The applicant states:

	a.  That the word "Unsatisfactory" should be removed as the reason for separation.  He does not believe his performance was unsatisfactory.  This must be a clerical error.  A check of his performance reports will find that his last duty station extended his assignment in Germany from February 1991 to July 1992.  There is nothing in his records to indicate that he was not performing satisfactorily throughout his military career.  

   b.  His last battalion commander in Germany was so impressed with his performance that he requested in writing that he not be reassigned in February 1991 and extended his assignment until the end of his enlistment.  He also received numerous certificates which will substantiate his job performance was exemplary, more than satisfactory.

   c.  At the time of his discharge there was a reduction-in-force.  The reason for his discharge should read "Involuntary discharge for the convenience of Government as a result of reduction in forces."  His agency's lack of support to get this matter taken care of in 1992 has affected his ability to obtain his benefits for the past 20 years.  He served his country with honorable service and he would like the benefits he qualifies for rendered.
3.  The applicant provides:

* Completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Honorable Discharge Certificate
* U.S. Army Reserve (USAR) discharge orders

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 (RA), in pay grade E-1, on 16 August 1989, for 3 years.  He completed training and he was awarded military occupational specialty (MOS) 16J, Defense Acquisition Radar Operator.  He was promoted to pay grade E-4 on 1 March 1991.  He served in Germany from 8 January 1990 through 9 July 1992.  

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on: 

* 12 August 1991, for wrongfully failing to go to his appointed place of duty on 2 August 1991 and for missing movement through neglect on 14 January 1991 
* 12 May 1992, for failing to go to his appointed place of duty on 20 April 1992; suspension of punishment of a forfeiture of $225.00 pay for one month was vacated based on his failing to go to his appointed place of duty on 29 May 1992

4.  He was counseled between May 1991 and June 1992 for the following:

* taking more initiative in self, proficiency, and education
* not reporting to sick call and possible elimination from the service
* possible elimination for poor judgment
* failing to be at his appointed place of duty
* not being present for duty
* continued unsatisfactory performance
* missing formation
* recurring inability to be at his appointed place of duty
* failing to pay debts
* failing to show back up for work and extra duty
* disobeying a lawful order from senior noncommissioned officer

5.  On 17 June 1992, the applicant's company commander notified him of the intent to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13.  He cited the reasons for this recommendation as the applicant's inability to overcome his past and present difficulties and that he did not possess the required attributions to develop into a satisfactory Soldier.  The applicant had consistently performed below Army standards of conduct and performance.  The company commander recommended the applicant receive a general discharge.

6.  On 17 June 1992, after consulting with counsel, the applicant acknowledged the proposed separation action under the provisions of chapter 13, Army Regulation 635-200 and of the rights available to him.  He waived his right to have his case heard before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged he understood he might be issued a general discharge.  

7.  On 17 June 1992, the applicant’s company commander recommended the applicant be separated from the service for unsatisfactory performance under the provisions of Army Regulation 635-200, paragraph 13-2a.  The company commander stated the applicant clearly had no potential for useful service under conditions of full mobilization.

8.  On 29 June 1992, the appropriate authority approved the applicant's discharge and directed the issuance of an honorable discharge.

9.  There is no indication he was approved for a reduction in force discharge during his period of service.

10.  On 13 July 1992, he was honorably released from active duty, in pay grade 
E-3, and was transferred to the USAR.  He was credited with completing 2 years, 10 months, and 28 days of active service with no time lost.

11.  Item 25 of his DD Form 214 shows he was released under the authority of Army Regulation 635-200, chapter 13.  Item 26 (Separation Code) shows LHJ.  Item 28 shows the narrative reason for his separation as Unsatisfactory Performance.  

12.  He was honorably discharged from the USAR on 19 August 1997.

13.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for a change to the reason and authority of his release from active duty.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 provided the policy and outlined the procedures for separating individuals for unsatisfactory performance. Service of individuals separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records.

15.  Army Regulation 635-200, paragraph 16-8 specified a Soldier could be separated prior to their expiration of term of service due to reduction in force, strengths limitations, or budgetary constraints.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reason for the separation of members from active military service, and the SPD codes to be used for those stated reasons.  The SPD of "LHJ" as shown on his DD Form 214 was appropriate when the narrative reason for involuntary discharge was "Unsatisfactory Performance” and the authority for discharge was Army Regulation 635-200, chapter 13.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was twice punished under Article 15 for failing to go to his appointed place of duty.  Between May 1991 and June 1992, he also received counseling for misconduct and unsatisfactory performance.  Therefore, his company commander initiated action to separate him for unsatisfactory performance.  The company commander stated the applicant did not possess the required attributions to develop into a satisfactory Soldier and had consistently performed below Army standards of conduct and performance.  

2.  His contentions are not sufficiently supported by his records or his application. There is no error or injustice in his record.  He was properly discharged in accordance with pertinent regulations with due process.  He acknowledged the proposed separation under the provisions of Army Regulation, chapter 13, for unsatisfactory performance, and he was separated accordingly on 13 July 1992. 

3.  The separation authority and separation code for separation listed on his DD Form 214 are commensurate with and correspond to the reason for his release from active duty.  He has failed to show through the evidence submitted or the evidence of record that Items 25 and 28 shown on his DD Form 214 are incorrect.  

4.  He has submitted neither probative evidence nor a convincing argument to show that he is now deserving of a correction of the separation authority and narrative reason for separation shown on his DD Form 214.

5.  The ABCMR also does not grant relief solely for the purpose of an individual qualifying for benefits administered by other agencies.

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)                                         AR20120000565





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ABCMR Record of Proceedings (cont)                                         AR20120000565



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