BOARD DATE:	  15 July 2014

		DOCKET NUMBER:  AR20130017479 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the entry in item 28 (Narrative Reason for Separation) as something other than "unsatisfactory performance."

2.  The applicant states he was discharged under honorable conditions.  After receiving his DD Form 214, he noticed the stated reason was due to unsatisfactory performance.  However, he was told he was being offered an early release due to military downsizing and was never told he was being discharged for unsatisfactory performance.  His military records do not include any disciplinary actions and he questions why his discharge was honorable if that was the reason.

3.  The applicant provides his DD Form 214.

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 10 August 1993 and he held military occupational specialty 11B (Infantryman).  On 22 November 1993, he was assigned to 3rd Battalion, 14th Infantry Regiment, Fort Drum, NY.

3.  Between 4 January and 1 June 1994, he was counseled on numerous occasions by various members of his chain of command for not paying his just debts on numerous occasions, unsatisfactory performance of duty, lying to his noncommissioned officers on two occasions, failing to comply with company standing operating procedures (SOP's), and losing government property on two occasions.

4.  On 8 June 1994, a bar to reenlistment was imposed against him for the numerous counselings he had received.

5.  Between 20 June 1994 and 12 January 1995, he was counseled on numerous occasions by various members of his chain of command for not paying his just debts on numerous occasions, failing to report to his assigned duty on several occasions, unsatisfactory performance of duty on several occasions, and failing to follow instructions on several occasions.

6.  On 18 January 1995, his immediate commander notified him that he was initiating separation action against him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.  The commander cited the specific reasons as his poor performance, numerous counselings he received, continued unsatisfactory performance despite the counselings, and his bar to reenlistment that had been reviewed on 8 September and 14 November 1994 and kept in place.  His commander recommended a general discharge.

7.  On 18 January 1995, the applicant acknowledged notification of the proposed separation action.  On 18 January 1995, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and the possible effects of a general discharge.  He was advised of the procedures and rights available to him.  He waived consideration of his case by an administrative separation board and did not submit a statement on his own behalf.

8.  The separation authority subsequently approved the applicant's separation and directed the issuance of a General Discharge Certificate.

9.  On 3 March 1995, he was released from active duty and transferred to the U.S. Army Reserve.

10.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13, with his service characterized as under honorable conditions (general).  He was assigned separation program designator (SPD) code "LHJ."  Item 28 of his DD Form 214 contains the entry "unsatisfactory performance."

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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 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, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

14.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities and the reasons for the separation of members from active military service and the SPD codes to be used.  This regulation shows that the when a Soldier is discharged under the provisions of Army Regulation 635-200, chapter 13, the appropriate SPD code is "LHJ" and the corresponding narrative reason for discharge is "unsatisfactory performance."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by numerous counselings he received for not paying his just debts, failing to report, unsatisfactory performance of duty, failing to comply with SOP's, and failing to follow instructions.  In addition, a bar to reenlistment had been imposed against him and, after two reviews, was kept in place due to his continued unsatisfactory performance despite the counselings.  Accordingly, his immediate commander initiated separation action against him for unsatisfactory performance.

2.  The applicant acknowledged receipt of the proposed separation action and was advised by legal counsel on the rights and procedures available to him.  His 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 reason for separation were therefore appropriate considering all the facts of the case.

3.  Based on his discharge under the provisions of Army Regulation 635-200, chapter 13, he was properly assigned the narrative reason for separation of "unsatisfactory performance."  This is the only authorized narrative reason for separation for Solders separated under that provision.

4.  In view of the foregoing, he is not entitled to the 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 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)                                         AR20130017479



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ABCMR Record of Proceedings (cont)                                         AR20130017479



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