MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 November 1999                   
	DOCKET NUMBER:   AR1999028384

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Orville W. Troesch, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the separation code on his DD Form 214 be changed.

APPLICANT STATES:  That he was not informed that if his out-processing was held for 2 weeks he would be eligible for education benefits.  That would have given him three full years and enabled him to receive his benefits.  After he separated, the VA informed him that he could receive these benefits if his separation code was not a general separation code.  He has been attending school full time and this eligibility would be of importance to him.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 20 October 1988 for 4 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 95B (Military Police).  He was assigned to Hawaii on        22 February 1989.

On 2 August 1991, the applicant completed a physical separation examination and was found qualified for separation.  On 12 August 1991, he underwent a mental status evaluation.  He was found to have the mental capacity to understand and participate in proceedings and was mentally responsible.

On 26 August 1991, the applicant’s commander initiated action to separate him under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance, specifically, his inability to pass the Army Physical Fitness Test (APFT).  An attached General Counseling Form indicated he failed either a semi-annual or diagnostic APFT in September, October and November (twice) 1989; in February, March, April (twice), July and October 1990, and in January, April and July 1991.  On the same General Counseling Form his first sergeant noted that it was the applicant’s lack of motivation and desire to succeed that resulted in his inability to pass the APFT.

On 28 August 1991, the applicant waived consulting counsel and elected not to submit a statement in his own behalf.  

On 28 August 1991, the appropriate authority approved the recommendation and directed the soldier be issued an honorable discharge.

On 6 September 1991, orders were published assigning the applicant to the U. S. Army Transition Point, Presidio of San Francisco for out-processing with a report date of 30 September 1991.

On 1 October 1991, the applicant was released from active duty, in pay grade     E-4, under the provisions of Army Regulation 635-200, Chapter 13, unsatisfactory performance, with an honorable discharge.  He had completed 2 years, 11 months and 12 days of creditable active service and had no lost time.  His separation code was LHJ.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

Army Regulation 635-5-1 prescribes the specific authorities, reasons for separating soldiers from active duty, and the separation program designator (SPD) codes to be entered on the DD Form 214.  Table C-1 states that SPD LHJ is given to enlisted soldiers involuntarily released from active duty under the provisions of Army Regulation 635-200, Chapter 13 for unsatisfactory performance.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.	 In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The SPD code of LHJ was and still is appropriate given the reason for his separation.  This was an involuntary separation, his separation was approved on 28 August 1991 and presumably it was the lead-time needed to obtain a portcall that postponed his separation date for a month.  The applicant could have been separated much earlier considering his almost   2-year history of failing the APFT.  

3.  The administration of education benefits is under the purview of the Department of Veterans Affairs.  The applicant should submit a request to that agency requesting an exception to policy.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sac___  __gdp___  __owt___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999028384	
SUFFIX		
RECON		
DATE BOARDED	19991123	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.		
3.		
4.		
5.		
6.