IN THE CASE OF:	  

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130011297 


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 to an honorable discharge.

2.  The applicant states his company commander recommended an honorable discharge at the time of his separation processing.

   a.  He states he had reenlisted twice and his service was satisfactory.  The timeframe between his two failed Army Physical Fitness Tests (APFT) was six weeks and that short period should not negate his previous honorable service.

   b.  He adds that he was not informed of his rights or the procedure to appeal the decision of his first sergeant and battalion commander.

3.  The applicant provides a copy of his separation packet and Enlisted Record Brief.

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 (RA) on 16 October 1990 for a period of 2 years and 24 weeks.  He reenlisted in the RA on 29 December 1992 for a period of 2 years and reenlisted again on 7 June 1994 for a period of
3 years.

3.  He was awarded military occupational specialty 54B (Chemical Operations Specialist) and promoted to specialist/pay grade E-4 on 15 December 1992.

4.  The applicant was counseled by his first sergeant (1SG) for failing to meet minimum performance standards for the APFT on 23 November 1994.  He was instructed to concentrate his efforts on physical fitness and advised that he would take a record APFT on 6 January 1995.

5.  The applicant was counseled by a noncommissioned officer for failing to pass a second (record) APFT on 6 January 1995.  He was advised separation action would be initiated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 (Separation for Unsatisfactory Performance).

6.  A Memorandum for Record, dated 24 March 1995, subject:  Physical Fitness Rehabilitation Period, shows the applicant's 1SG documented the applicant's two APFT failures, the rehabilitation period he was given, and efforts to improve his APFT performance.  The 1SG opined that the applicant was intentionally failing the APFT standard in hopes it would lead to an administrative separation from the Army.  Therefore, he saw no reason to continue any rehabilitation effort.

7.  On an unspecified date, the applicant's company commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

   a.  The reason for his proposed action was the applicant failed two consecutive record APFT.

   b.  The applicant was advised of his rights and the separation procedures involved.

8.  On 30 March 1995, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.
	
	a.  He acknowledged that military legal counsel for consultation was available to assist him; however, he waived representation by counsel.

   b.  He indicated that he would not submit statements in his own behalf.

	c.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him.

	d.  He acknowledged he understood that if he received a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life.

   e.  He was informed that, if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrade of his discharge. However an act of consideration by either board did not imply his discharge would be upgraded.

	f.  The applicant and his counsel placed their signatures on the document.

9.  The company commander recommended approval of the applicant's separation action and that he be issued an honorable discharge.

10.  The separation authority approved the recommendation for discharge of the applicant and directed that his service be characterized as General (Under Honorable Conditions).

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 16 October 1990 and he was released from active duty on 5 May 1995 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  His service was characterized as under honorable conditions and he was transferred to the
U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.

   a.  He had completed 4 years, 6 months, and 20 days of net active service this period.
   b.  Item 18 (Remarks) shows he had immediate reenlistments this period, as follows:  from 16 October 1990 through 28 December 1991 and 29 December 1991 through 7 June 1994.  It does not show the period of his continuous honorable active service.

12.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the ADRB for review of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 13, in effect at that time, provides, in part, that "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 will 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 was characterized as honorable or under honorable conditions.

   b.  Chapter 3, 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.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance for preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the military personnel record.

	b.  Paragraph 2-1 (Preparing the DD Form 214) states a DD Form 214 will not be prepared for Soldiers discharged for immediate reenlistment in the RA.
	c.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It states item 18 is used for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks.

		(1)  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)."

		(2)  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to an honorable discharge because he was not given a sufficient period of time between his two APFTs to improve his performance, he was not informed of his rights or the procedure to appeal the commander's decision, and his company commander recommended that he receive an honorable discharge.

2.  The evidence of record shows that the applicant was afforded a period of six weeks to improve his performance on the APFT; however, he did not do so. Thus, the applicant's contention that he was not given sufficient time to pass the APFT is not supported by the evidence of record.

3.  Records show the applicant was advised of his rights and the separation procedures involved.  He acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  In addition, he acknowledged that he understood he could make application to the ADRB or ABCMR for review of his discharge.  Thus, the evidence of record refutes his contention that he was not informed of his rights or the procedure to appeal the commander's decision regarding his separation action.

4.  The applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  Considering all the facts of this case, the reason for his separation and characterization of discharge were appropriate and equitable.
5.  The applicant had one enlistment and two reenlistments during the period covered by his DD Form 214.  Item 18 shows he had prior periods of honorable service, as one cannot reenlist without first being honorably discharged.

   a.  The evidence of record also shows that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment, followed by the specific periods of reenlistment(s).

	b.  Item 18 of the applicant's DD Form 214 does not contain such an entry.

   c.  Therefore, it would be appropriate to correct the DD Form 214 to show his continuous period of honorable active service from 16 October 1990 through
6 June 1994.

6.  The evidence of record shows that the applicant reenlisted on 7 June 1994. Shortly thereafter, he twice failed the APFT and he was separated from active duty on 5 May 1995.  Thus, his performance of duty during this short period of service was not fully honorable.  Moreover, the Board does not grant requests for discharge upgrades solely based on previous terms or periods of honorable service.  Therefore, he is not entitled to an honorable discharge for the period of service under review.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 adding the following entry to item 18 of his DD Form 214:
   
* "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19901016 - 19940606"

2.  The Board further determined 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 upgrade of his entire period of service to an honorable discharge.




      _______ _   _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)                                         AR20130011297



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ABCMR Record of Proceedings (cont)                                         AR20130011297



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