IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120001515


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 an upgrade of his general discharge (GD) under honorable conditions to an honorable discharge (HD) and correction of his narrative reason for discharge.

2.  The applicant states:

	a.  He was never offered or given an opportunity to participate in any alcohol rehabilitation programs and as a result did not receive due process.

   b.  He was released from active duty because he failed the sit-up portion of the Army Physical Fitness Test (APFT) and for getting into a fight with another Soldier one night after drinking.
   
   c.  He was under court order to pay half of his check to a friend led to his bad check writing at the post exchange and his negative bank account.
   
   d.  His many stresses and worries resulting from his finances which led him to drink for a couple months without stopping.
   
   e.  He became out of shape and unable to pass the APFT.
   
3.  The applicant provides a self-authored statement and Oakland County, Veterans Service Division, letters dated 4 January and 5 March 2012.


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's record shows he enlisted in the Regular Army on 15 September 1987.  He was trained in and held military occupational specialty 11H (Heavy Anti-Armor Infantryman).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to private first class (PFC/E-3) on 5 September 1988 and this was the highest rank/grade he held on active duty.  It also shows he was awarded or authorized the following awards during his active duty service:

* Drivers Badge
* Army Service Ribbon
* Parachutist Badge
* Expert Marksmanship Qualification Badge with Hand Grenade Bar
* Marksman Marksmanship Qualification Badge with M-16 Rifle and Tow Gunner Bars

4.  On 2 May 1989, he received a letter of reprimand (LOR) for operating a motor vehicle while intoxicated.

5.  The applicant's record reveals a disciplinary history that shows he was formally counseled eleven times during the period 15 October 1989 through 28 January 1990, for a myriad of infractions that include the following:

* APFT failure (twice)
* Missing formation
* Inability to pay bills and child support
* Dishonored checks (twice)
* 
Financial problems
* Lack of discipline and motivation
* Drinking

6.  On 8 January 1990, the applicant underwent a mental status evaluation that showed:

* his behavior and thought content were normal
* he was fully alert and oriented
* he had an unremarkable mood
* his thinking process was clear
* his memory was good
* he was mentally responsible and met retention requirements
* had the mental capacity to understand and participate in separation proceedings

7.  On 2 February 1990, the unit commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance with a GD.  The unit commander cited the applicant’s numerous counseling without improvement as the basis for the proposed separation action.

8.  On 6 February 1990, the applicant acknowledged receipt of the separation action, consulted with legal counsel, and was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, he elected not to submit a statement on his own behalf.  He did not have 6 years of service and as a result he was not entitled to have his case heard by an administrative board.

9.  On 6 February 1990, the unit commander requested a waiver of the rehabilitative requirements, indicating the applicant's duty performance was unsatisfactory.  The commander further stated that rehabilitative measures would not be in the best interest of the Army as it would not produce a quality Soldier.

10.  On 6 February 1990, the separation authority approved the applicant's separation and directed issuance of a GD.  He also waived further counseling and rehabilitation requirements.


11.  On 14 February 1990, the applicant was discharged accordingly.  Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged by reason of "unsatisfactory performance” with a separation program designator (SPD) code of “JHJ” and that he received a GD.  

12.  On 6 October 2000, the Army Discharge Review Board, after carefully considering the applicant’s case, concluded that his discharge was proper and equitable, and it voted to deny his request to upgrade his discharge.  

13.  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.

14.  Army Regulation 635-200, 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.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code JHJ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 13 by reason of unsatisfactory performance.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JHJ.

16.  Army Regulation 635-200 further states that prior to discharge or release from active duty individuals will be assigned RE codes based on their service 

records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his GD should be upgraded to an HD and the narrative reason for separation changed.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  The applicant consulted with legal counsel and was provided the opportunity to provide a statement in his own behalf at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's record includes an LOR for operating a vehicle under the influence of alcohol.  It also contains eleven records of formal counseling received within an 4-month period for a myriad of infractions.  Subsequent to these counseling the unit commander initiated the applicant's separation action, requested a waiver of additional rehabilitative measures because he showed no improvement, and the separation authority approved this request.  Clearly, the applicant's misconduct diminished the overall quality of his service below that meriting a fully honorable discharge.  His service did not support the issuance of an HD by the separation authority at the time of discharge and it does not support an upgrade now.  In addition, the applicant was separated by reason of "unsatisfactory performance."  Accordingly, there is no basis for changing item 28 of DD Form 214

4.  In view of the forgoing, 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)                                         AR20120001515





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ABCMR Record of Proceedings (cont)                                         AR20120001515



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