IN THE CASE OF:	  

		BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120010217 


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 his general discharge be upgraded to honorable and his narrative reason for separation be changed.

2.  The applicant states:

* His general discharge should now read honorable
* His narrative reason for separation isn't true
* He was told by the Department of Veterans Affairs (DVA) his paperwork doesn't show his general discharge was changed to honorable after six months from the date of his discharge so he doesn't qualify for any DVA benefits
* He did not commit any wrongdoings on active duty, he just wanted out
* Unsatisfactory performance isn't the right classification of his discharge  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 9 September 1992 for a period of 2 years and 17 weeks.  He completed his training and was awarded military occupational specialty 13B (cannon crewmember).  

3.  Between 2 March 1993 and 9 September 1993, he was counseled for:

* being out of ranks at formation
* failing to clean a designated common area
* absent from formation
* absent from place of duty and disobeying a lawful order
* absent from place of duty (two specifications)
* lack of motivation, avoidance of duty, failure to repair, and AWOL  

4.  On 7 May 1993, nonjudicial punishment (NJP) was imposed against him for intentionally injuring himself by infecting himself with poison ivy for the purpose of avoiding service.

5.  On 30 August 1993, NJP was imposed against the applicant for being absent without leave (AWOL) from 6 August 1993 to 9 August 1993.

6.  He was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance.  His unit commander cited:

* he had received 2 NJPs, one for AWOL and one for malingering
* his chain of command attempted to help him with his problems but to no avail
* he never displayed the motivation or the determination to overcome his problems
* further remedial training and rehabilitation efforts would not be beneficial to him or the Army
* he did not have the potential for advancement or leadership





7.  On 24 November 1993, he consulted with counsel and acknowledged notification of his pending separation action.  He also acknowledged he understood that he might encounter substantial prejudice in civilian life if a general discharge was issued.  He elected to submit a statement in his own behalf; however, this statement is not available.  

8.  On 8 December 1993, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

9.  He was discharged under honorable conditions on 28 December 1993 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed a total of 1 year, 3 months, and 18 days of creditable active service with 2 days of lost time.

10.  His DD Form 214 shows in:

* Item 25 (Separation Authority) the entry "AR (Army Regulation) 635-200, CHAP (Chapter) 13 "
* Item 26 (Separation Code) the entry "JHJ"  
* Item 28 (Narrative Reason for Separation) the entry "UNSATISFACTORY PERFORMANCE"

11.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.  Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment, the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this chapter would be characterized as honorable or under honorable conditions.

12.  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.  


13.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code "JHJ" is "unsatisfactory performance" and the regulatory authority is Army Regulation 635-200, chapter 13.

14.  The U.S. Army does not now have nor has it ever had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should have been changed to honorable after 6 months.  However, a discharge upgrade is not automatic.

2.  He contends he doesn't qualify for any DVA benefits because of his discharge.  However, a discharge is not changed for the purpose of rendering a member eligible for benefits.

3.  He contends he did not commit any wrongdoings on active duty.  However, his record of service included adverse counseling statements and two NJPs.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

5.  Although he contends his narrative reason for separation isn't true, evidence shows he was discharged for unsatisfactory performance.  His narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.  

6.  In view of the foregoing, there is no basis for granting the applicant's requests.



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)                                         AR20120010217





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ABCMR Record of Proceedings (cont)                                         AR20120010217



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