IN THE CASE OF:  	  

		BOARD DATE:  28 October 2014	  

		DOCKET NUMBER:  AR20140004928 


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.  

2.  He states:

	a.  his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for unsatisfactory performance and that is wrong.

	b.  he passed his last Army Physical Fitness Test (APFT).  His noncommissioned officer (NCO) found out he was gay although he never told him but heard a rumor and made his last 2 months in the military a living hell.  No matter what he did, it was not going to be right.

	c.  his NCO told him that he didn't pass his APFT, but he did pass it.  It was a matter of his NCO's word against a private.  Even though he protested, the NCO used it as grounds to chapter him out unfairly.

3.  He provides no additional documents.

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 7 June 1990 for a period of 4 years.

3.  His service record contains a DA Form 705 (APFT Scorecard) which shows he failed his APFT on 6 December 1990 and 23 January 1991 and passed on 5 March 1991 with a total score of "191."

4.  He was barred from reenlistment on 23 June 1991.  His DA Form 4126 (Bar to Reenlistment Certificate), dated 23 June 1991, indicates the applicant failed to meet weight standards in accordance with Army Regulation 600-9 (The Army Body Composition Program) and he was enrolled in the Army Weight Control Program.  

5.  He received numerous adverse counseling statements on various dates between January and October 1991 for:

* buying items at the Post Exchange (PX) for a Foreign National employed in a snack bar
* failing the APFT
* failing to report for extra training
* failing the driver's test for the third and final time
* failing to meet the APFT standards
* failing to complete the battery APFT run
* having a pattern of minor infractions/misconduct and failing to meet battery standards
* failing to meet height and weight standards
* failing to report to the motor pool as directed by a sergeant
* leaving his appointed place of duty (physical training (PT) formation) to go to his room without permission or authorization
* failing to show up on time for extra training
* having his wall locker unsecure
* failing to maintain his room, clothing, wall locker, and common area in any sense of military standards
* requesting permission to possess homosexual pornographic videos
* possessing male pornography in the form of "Playgirl" magazine
6.  On a DA Form 4856 (General Counseling Form), dated 30 September 1991, the counselor noted the applicant had stated publically to members of his section and his squad leader that he would purposely fail the APFT because he wanted to be eliminated from the Army.  

7.  His DA Form 705 shows he failed his APFT on 30 September and 30 October 1991.

8.  On 23 December 1991, the unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  His unit commander stated that since the applicant had been in Korea, he had failed four out of his last five PT tests and had been placed in the Army weight control program.  The unit commander further stated the applicant was caught with male pornography in his wall locker and he made remarks contrary to the Standard of Conduct expected of a U.S. Soldier.  
Further, the unit commander recommended that the applicant be separated with an Honorable Discharge Certificate and that the separation authority was in no way obligated to approve the discharge he recommended.  He was advised of his rights.  

9.  On 30 December 1991, he consulted with legal counsel and did not submit statements in his own behalf.

10.  On 8 January 1992, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with the issuance of a general discharge.

11.  On 22 January 1992, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  At the time of his discharge, he had completed 1 year, 7 months, and 16 days of active military service.  

12.  His DD Form 214 shows in:

	a.  item 24 (Character of Service), the entry "UNDER HONORABLE CONDITIONS (GENERAL)";

	b.  item 25 (Separation Authority), the entry "AR 635-200, CHAP 13";

	c.  item 26 (Separation Code), the entry "JHJ"; and

	d.  item 28 (Narrative Reason for Separation) the entry "UNSATISFACTORY PERFORMANCE."

13.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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 in the commander's judgment the individual will not become a satisfactory Soldier; 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.

15.  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.

16.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  The regulation specifies that item 28 will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1 (Separation Program Designator Codes).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 shows he was discharged for unsatisfactory performance and that is wrong.  However, his narrative reason for discharge was based on his failure to pass the APFT four times, he failed to meet height and weight standards, and other minor infractions/misconduct as recorded on his counseling statements.  

2.  The evidence of record supports the applicant's contention that he passed his APFT on 5 March 1991.  However, his service records show he failed his APFT on 6 December 1990, 23 January 1991, 30 September 1991, and 30 October 1991.  

3.  The applicant contends his NCO found out he was gay and made his last
2 months in the military a living hell.  However, his service record is void of evidence and he has not provided any evidence to support his claims.  Further, NCOs don’t chapter Soldiers out; commanders make that decision.

4.  The applicant's service records show he received a bar to reenlistment and several adverse counseling statements.  

5.  His administrative separation for this misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

6.  Although the applicant's unit commander recommended the issuance of an honorable discharge, it appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a fully honorable discharge and characterized his service as under honorable conditions (general).  The applicant has not presented sufficient evidence which warrants changing his general discharge to fully honorable.

7.  The evidence of record does not indicate the actions taken against him were in error or unjust.  Therefore, there is no basis for granting his request.

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)                                         AR20140004928



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ABCMR Record of Proceedings (cont)                                         AR20140004928



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