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 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 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



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ABCMR Record of Proceedings (cont)                                         AR20120004944



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