IN THE CASE OF:	  

		BOARD DATE:  26 September 2013

		DOCKET NUMBER:  AR20130002674 


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 and change of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) from unsatisfactory performance to something more favorable.

2.  The applicant states his discharge was based on failing the run portion of the Army Physical Fitness Test (APFT).  He had no other issues and he was a fine Soldier.  His record proves that as well as the medals he received.

3.  The applicant did not provide any 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 30 August 1990 and he held military occupational specialty 36M (Switching Systems Operator).

3.  He served in Alaska from 25 April 1992 to on or about 20 December 1992.  He was awarded or authorized the Army Service Ribbon, National Defense Service Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  He was frequently counseled by members of his chain of command regarding his unsatisfactory performance on the APFT.  He had failed the APFT multiple times.

5.  On 4 December 1992, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations), chapter 13, by reason of unsatisfactory performance due to his inability to achieve APFT standards.  The immediate commander recommended issuance of a general discharge.

6.  On 4 December 1992, the applicant acknowledged receipt of the commander's intent to separate him and he consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He declined to make a statement in his own behalf and further acknowledged he understood:

* he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade; however, an act of consideration does not mean his discharge would be upgraded 

7.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation
635-200, chapter 13, by reason of unsatisfactory performance.

8.  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 the applicant be furnished a General Discharge Certificate.

9.  On 22 December 1992, the applicant was discharged accordingly.  He completed 2 years, 3 months, and 23 days of creditable active service.  His DD Form 214 shows in:

* Item 26 (Separation Code) the entry "LHJ"
* Item 28 the entry "Unsatisfactory Performance"

10.  On 15 May 1996, the ADRB considered his petition for discharge upgrade and change to his reason for separation.  The board determined his general discharge was inequitable.  As such, the ADRB voted to grant relief by upgrading the characterization of service to honorable.  The ADRB also considered the reason for his separation; however, the ADRB found it proper and equitable and voted not to change it.

11.  On 27 November 1996, his DD Form 214 was voided and he was reissued a new DD Form 214 that reflected his upgraded characterization of service as honorable and with the same separation code and narrative reason for separation.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when in the commander's judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

13.  Army Regulation 635-200, chapter 13 states initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the APFT, unless the responsible commander chooses to impose a bar to reenlistment per Army Regulation 601-280 (Total Army Retention Program).  The regulation requires that separation action be taken when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation is characterized as honorable or under honorable conditions.


14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "LHJ" is the correct code to be assigned to Soldiers separating under Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance in that he was unable to achieve the minimum APFT standards.  Accordingly, his chain of command initiated separation action against him.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

2.  With respect to the characterization of his service, the ADRB reviewed his discharge and determined it was inequitable.  Accordingly, the ADRB voted to grant relief by upgrading his general discharge to an honorable discharge.  The ADRB also considered the reason for his separation but found it proper and equitable and voted not to change it.  He was reissued a new DD Form 214 that reflects his honorable characterization of service.  He was provided with a copy of this form by separate correspondence.  Therefore, there is no further correction required. 

3.  With respect to the narrative reason for separation:  

	a.  The evidence of record confirms the narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 13 of Army Regulation 635-200 due to unsatisfactory performance.  Absent his unsatisfactory performance regarding physical fitness, there was no fundamental reason to process him for separation.  The underlying reason for his discharge was his unsatisfactory performance in his inability to attain the minimum APFT standards.

	b.  The only valid narrative reason for separation permitted under the authority and reason for his discharge is "Unsatisfactory Performance" which is correctly shown on his DD Form 214.  The applicant appears to have been discharged under the appropriate separation authority and he was assigned the appropriate narrative reason for separation.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130002674



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ABCMR Record of Proceedings (cont)                                         AR20130002674



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