IN THE CASE OF:  	  

		BOARD DATE:  3 December 2014	  

		DOCKET NUMBER:  AR20130019276 


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 block 25 (Separation Authority) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a more favorable entry
* correction of block 28 (Narrative Reason for Separation) of his DD Form 214 to show "Convenience of the Government" instead of "Unsatisfactory Performance"
* correction of the "Finding of Facts" section of his Administrative Separation Board Summary of Proceedings to show "allegation is not supported and does not warrant separation"
* a review of the Army Discharge Review Board (ADRB) Case Report and Directive for Case Number AR20110002501, dated 21 September 2011

2.  The applicant states:

	a.  Transcripts of his separation board proceedings reveal all of the allegations against him were found to be unsupported and did not warrant separation.

	b.  The sole allegation that he purposely failed to report for duty in a timely manner on numerous occasions was erroneously accepted as being supported by counseling statements prohibited by Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 1-18 (Counseling and Rehabilitative Requirements).

	c.  He should never have been separated; he should have been allowed to transfer to Korea per his assignment orders which were kept secret by his superiors.  Instead, he was kept in a unit where he was overtly disrespected by privates and absent the basic support a noncommissioned officer (NCO) deserves.

	d.  He is concerned that prospective employers could mistakenly relate his narrative reason for separation to his occupation of practical nurse.  Such an assumption by a human resources officer would certainly cause a hindrance to his consideration for employment in the absence of a thorough explanation.

	e.  His original contentions were made with the assumption that the ADRB would request and review, inter alia, the 23-page [pages 4 and 16 are missing] transcript of his separation hearing from the National Personnel Records Center (NPRC).  He assumed the relevant counseling statements would be obtained from NPRC as well.

	f.  His unit willfully withheld a notice of his reassignment to Korea from him in order to keep him in a unit where he did not enjoy camaraderie and support from most of his senior supervisory NCO's.  Instead, he was targeted and subjected to all sorts of unwarranted and unfavorable circumstances and treatment by even privates who appeared to have had the first sergeant's encouragement to openly disrespect and snub him.

	g.  His NCO Evaluation Report (NCOER) shows that contrary to his narrative reason for separation of "unsatisfactory performance," his work ethic was exceptional during the time frame covered up to his discharge.

3.  The applicant provides:

* DD Form 214 for the period ending 3 June 1996
* ADRB Case Report and Directive, dated 21 September 2011
* Memorandum for (Applicant), dated 8 March 1996, subject:  Reassignment Notification
* memorandum for the Adjutant General, dated 16 May 1996, subject:  Chapter 13 – (Applicant)
* 4th endorsement for the Commander, U.S. Army Training Center and Fort Jackson, dated 16 May 1996, subject:  Recommendation for Separation Under the Provisions of Army Regulation 635-200, Chapter 13, (Applicant)
* Administrative Separation Board Summary of Proceedings
* self-authored comments to the Administrative Separation Board Summary of Proceedings
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 9 July 1986.  He was released from active duty and transferred to the U.S. Army Reserve on 8 July 1991.  On 1 December 1993, he again enlisted in the RA for a period of 3 years. He was promoted to the rank and pay grade of sergeant (SGT)/E-5 effective 15 April 1994.

3.  His NCOER covering the period April 1994 through March 1995 shows in:

	a.  Part IV (Values/NCO Responsibilities (Rater))

* the rater placed an "X" in the "NO" block for "Maintains high standards of personal conduct on and off duty"
* the rater commented, "involve in several incidents that reflects negatively on NCO Corp on and off-duty” [sic]
* the rater commented, "sets poor examples of leadership" in the block for Leadership

	b.  Part V (Overall Performance and Potential), the senior rater commented, "Army potential has been maximized at current pay grade" and "does not meet obligations as an NCO."

4.  On 17 May 1995, he accepted nonjudicial punishment for disobeying a lawful order from his superior commissioned officer and for failing to go at the time prescribed to his appointed place of duty.


5.  His NCOER covering the period April 1995 through November 1995 shows in Part IV:

* the rater placed an "X" in the "NO" block for "Is disciplined and obedient to the spirit and letter of a lawful order"
* the rater commented, "occasionally failed to report to duty as posted on the training and time schedule" and "poor performance as an NCO when faced in conflict with peers" in the block for Leadership

6.  A 23-page Administrative Separation Board Summary of Proceedings show the applicant appeared before the board on 29 February 1996.  The Summary of Proceedings indicate the applicant was present with his counsel during all open sessions of the board and he was afforded full opportunities to cross-examine adverse witnesses, to present evidence in his own behalf, to testify in person, and to submit a written statement.

7.  The board concluded the applicant was undesirable for further retention in military service because of unsatisfactory performance.  The board recommended issuance of an honorable characterization of service.  The Summary of Proceedings show that prior to making its determination the board examined approximately 15 counseling statements, a letter from the finance office pertaining to an Army Reserve bonus, a letter from a third party, a letter from the Army and Air Force Exchange Service, and the nonjudicial punishment he received on 17 May 1995.  However, aside from the nonjudicial punishment, the above-mentioned documents are not available for review with case.

8.  On 14 May 1996, he was found guilty contrary to his plea by a special court-martial of violating a lawful general regulation by having a then Soldier-in-training in his barracks room, such conduct not being required to accomplish the training mission.  The sentence imposed no punishment.

9.  His NCOER covering the period December 1995 through May 1996 shows in:

	a.  Part IV:

* the rater placed an "X" in the "NO" block for "Is disciplined and obedient to the spirit and letter of a lawful order" and for "Maintains high standards of personal conduct on and off duty"
* the rater commented, "needs consistent counseling/direction when dealing with appropriate actions toward rules and regulations" and "unable to follow instructions correctly" in the block for Leadership


	b.  Part V:

* the rater placed an "X" in the "marginal" block for "Overall potential for promotion and/or service in positions of greater responsibility"
* the senior rater commented, in part, "shows overall lack of appropriate judgement as an NCO"

10.  His complete separation packet is not available for review.  However, he provided a 4th endorsement for the Commander, U.S. Army Training Center and Fort Jackson, dated 16 May 1996, subject:  Recommendation for Separation Under the Provisions of Army Regulation 635-200, Chapter 13, (Applicant), that shows his discharge was approved by the separation authority on that date.

11.  His DD Form 214 shows he was honorably discharged on 3 June 1996 under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  He was assigned a separation program designator code of "JHJ."

12.  He provided a memorandum from the Personnel Division Chief, dated 8 March 1996, subject:  Reassignment Notification, that shows he received assignment instructions to Korea with an arrival month of August 1996 and a memorandum for the Adjutant General from the Troop Commander, dated 16 May 1996, subject:  Chapter 13 – (Applicant), listing the chronological events pertaining to his discharge proceedings.

13.  He also provided self-authored comments to the Administrative Separation Board Summary of Proceedings in which expresses his disagreement with the contents of the Summary of Proceedings.

14.  On 21 September 2011, the ADRB reviewed his application for a change in his narrative reason for separation.  After careful review of his available military records, the issues, and the documents submitted, the ADRB found no mitigating factors that would warrant a change in his narrative reason for separation.  The ADRB based its decision on the fact that his records did not contain documentation detailing the specific facts and circumstances concerning the events that led to his discharge.  As a result, the ADRB presumed governmental administrative regularity in its discharge process.

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

16.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-2c, states the ABCMR will decide cases on the evidence of record.  It is not an investigative agency.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that block 25 of his DD Form 214 should be changed to a more favorable entry, that block 28 should be changed from "Unsatisfactory Performance" to "Convenience of the Government," and that the "Finding of Facts" section of his Administrative Separation Board Summary of Proceedings should be modified have been carefully considered.

2.  His complete separation packet is not available for review with this case.  However, his records contain evidence of nonjudicial punishment, a court-martial conviction, negative NCOER's throughout his service as an NCO, and, although not available for review, several counseling statements where mentioned.  His records also contain the DD Form 214 that confirms the separation authority and narrative reason for separation.

3.  He expressed his displeasure with the Administrative Separation Board Summary of Proceedings; however, the evidence shows he was present with his counsel during all open sessions of the board and he was afforded full opportunities to cross-examine adverse witnesses, to present evidence in his own behalf, to testify in person, and to submit a written statement.

4.  Based on the available evidence, it appears that his separation process was accomplished in accordance with the applicable regulation, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process.

5.  The applicant did not provide evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to his separation process and the reason and authority for his separation.

6.  In the absence of evidence of error or injustice, there is insufficient evidence to grant 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)                                         AR20130019276



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ABCMR Record of Proceedings (cont)                                         AR20130019276



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