BOARD DATE: 18 September 2012
DOCKET NUMBER: AR20120004944
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, in effect, removal of the narrative reason for separation from his DD Form 214 (Certificate of Release or Discharge from Active Duty).
2. The applicant states, in effect, he would like "unsatisfactory performance" removed from his DD Form 214. At the time of his discharge he and his first wife were having marital problems, because the Army wanted to send him overseas. His wife said she would leave him if he went overseas and he did not want his wife to leave him. His first sergeant told him he could get him honorably discharged. However, he was unaware that the discharge would be for "unsatisfactory performance." He spoke to his first sergeant about this and he was told not to worry because his DD Form 214 could be changed at a later date.
3. The applicant provides no additional 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 applicants 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 applicants 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 15 January 1992 and held the military occupational specialty 31M (Multichannel Transmission Systems Operator). The highest rank/grade he attained while serving on active duty was specialist/E-4.
3. His record contains a DA Form 706 (Army Physical Fitness Test (APFT) Score Card), showing on 19 September 1993 he failed the run event, exceeded the weight standard for his height, and failed the tape test.
4. His record contains a DA Form 4856 (General Counseling Form), dated
30 September 1993, wherein he was counseled for failing the 2-mile run event and failing to meet the Army's height and weight standards during the APFT. His supervisor placed him in the remedial physical training program.
5. On 24 November 1993, he took another APFT and failed the 2-mile run event.
6. His record contains a Standard Form (SF) 88 (Report of Medical Examination) and an SF 93 (Report of Medical History) showing he received a pre-separation medical examination, on 22 November 1993.
7. On 2 December 1993, 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 pass the APFT on two separate occasions and informed him of his rights. On this same date, the applicant acknowledged receipt of the notification.
8. On 6 December 1993, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a general discharge, and of the rights available to him. He did not indicate whether or not he intended to submit statements in his own behalf.
9. His record contains a DA Form 3822-R (Report of Mental Status Examination) showing he received a pre-separation psychiatric evaluation, on 20 December 1993, and he was found fit to participate in separation proceedings.
10. On 28 December 1993, 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 receive an honorable characterization of service.
11. His DD Form 214 shows he was released from active duty for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200 with a general characterization of service. The separation code listed in item 26 (Separation Code) is listed as "LHJ." Item 28 (Narrative Reason for Separation) of his DD Form 214 is listed as "Unsatisfactory Performance." This form further shows he completed 2 years and 11 days of net active service during this period of active duty.
12. Army Regulation 635-200 (Enlisted Separations), chapter 13 (Separation for Unsatisfactory Performance), states a Soldier may be separated under this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that, in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier, or the seriousness of the circumstances is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale, and it is likely that the Soldier will be a disruptive influence in present or future duty assignments, and it is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur, and the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely, and the Soldier meets retention medical standards
13. 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. It notes that "JHJ" is the appropriate code for individuals separated for unsatisfactory performance.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the separation authority directed the applicant receive an honorable characterization of service; however, his DD Form 214 shows, in error, a general under honorable conditions characterization of service. Therefore he is entitled to correction of his DD Form 214 to show he received an honorable characterization of service.
2. He was released from active duty because he failed to meet the Army's height and weight standards and he failed to pass the APFT more than once. These are grounds for separation under chapter 13 of Army Regulation 635-200 for unsatisfactory performance.
3. 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.
4. There is no evidence, nor has the applicant provided evidence, to show his separation was administratively incorrect or that his first sergeant was unjust or unfair. In view of the foregoing he is not entitled to the requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
____x___ __x_____ ___x____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant a new DD Form 214 with an honorable characterization of service and an Honorable Discharge Certificate.
2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing or deleting his narrative reason for separation.
_______ _ 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) AR20120004944
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20120004944
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140012997
His records contains a request for elimination packet, dated 17 February 1993, which shows his commander consulted with the Staff Judge Advocate/Legal Services Center, requested an elimination packet, and recommended the applicant be separated in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 (Separation for Unsatisfactory Performance). The evidence of record shows the applicant underwent two surgeries and was given periods of convalescent...
ARMY | BCMR | CY2014 | 20140004928
On 23 December 1991, the unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13, for unsatisfactory performance. However, his narrative reason for discharge was based on his failure to pass the APFT four times, he failed to meet height and weight standards, and other minor infractions/misconduct as recorded on his counseling statements. Although the applicant's unit...
ARMY | BCMR | CY2005 | 20050000370C070206
He further states his discharge from the Army for unsatisfactory performance was not deserved, and now requests he be given a medical discharge for his flat feet and the torn ligament in his knee, or that his records be corrected to show he completed his enlistment and was separated by reason of ETS. The APFT scorecard shows he completed 42 pushups, 65 sit-ups, and the 6.2 miles alternate bicycle event in 37 minutes and 30 seconds, which again resulted in a failure of his APFT. Therefore,...
ARMY | BCMR | CY2001 | 2001058569C070421
He was improving on his physical training run. On 5 and 10 January 1991, he was counseled for failing the APFT. The evidence of record does not show any reason why the applicant’s chain of command should have referred him for mental health counseling.
ARMY | BCMR | CY2010 | 20100026794
Application for correction of military records (with supporting documents provided, if any). 2 March 1993: The applicant was counseled on his second APFT failure. The applicant's service medical records are not available for review.
ARMY | BCMR | CY2013 | 20130017286
A year later, his brother told him Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 19 (Qualitative Management Program (QMP)), stated each Soldier would get copy of the board proceedings and they could appeal. Memorandum, dated 5 November 2010, wherein he stated he had reviewed his Official Military Personnel File (OMPF) and, if not selected for retention, he requested transfer to the Retired Reserve and that he wanted to be allowed to achieve 20 years of...
ARMY | BCMR | CY2011 | 20110009460
On 15 September 1992 he was counseled regarding his two consecutive APFT failures and notified that separation procedures would be initiated to discharge him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations. Therefore, the Board determined that the overall...
ARMY | BCMR | CY2010 | 20100010178
The applicant states he was separated from the Army because he was overweight and couldn't pass the Army Physical Fitness Test (APFT). On 19 December 1988, the applicant's company commander notified him of her intent to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13. There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of...
ARMY | BCMR | CY2012 | 20120010643
The applicant requests that his discharge, under honorable conditions, be upgraded to honorable. On 1 March 1994, the applicants commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, based on two APFT failures. The evidence of record clearly shows the applicant was counseled on several occasions concerning his APFT failures and overweight condition.
ARMY | BCMR | CY1996 | 9608624C070209
APPLICANT REQUESTS: That his discharge for unsatisfactory performance be corrected to a medical retirement. EVIDENCE OF RECORD: The applicant's military personnel and medical records show: He enlisted in the Regular Army on 27 January 1986, was awarded the military occupational specialty of Bradley Fighting Vehicle System Mechanic Recovery Operations, served continuously, and was promoted to pay grade E-5. On 17 May 1994 the applicants commander notified him that he was recommending his...