IN THE CASE OF: BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150016062 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150016062 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. IN THE CASE OF: BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150016062 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 his general under honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states he wants his discharge upgraded to reflect a more accurate portrayal of his time in service. 3. The applicant 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 on 17 March 2004. 3. His service record shows he failed to pass two consecutive Army Physical Fitness Tests (APFT) administered on 28 April 2005 and 29 August 2005 while serving in Iraq. (He served in Iraq from 27 November 2004 to 17 October 2005.) After each APFT failure, he was counseled and advised he could be administratively separated from the Army for poor performance – APFT failures. 4. On 26 March 2006 after his return from Iraq, the applicant's unit commander notified the applicant of the proposed recommendation to administratively discharge him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 13, for unsatisfactory performance based on the two record APFT failures. He was advised of his rights. He acknowledged receipt of the pending separation action, consulted with legal counsel, and did not submit statements in his own behalf. 5. Subsequent to the chain of command recommendations, 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 under honorable conditions discharge. 6. On 28 April 2006, the Army discharged him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He completed 2 years, 1 month, and 12 days net active service. 7. He reenlisted in the Regular Army on 23 May 2008. He was sent to training at Fort Gordon, GA. 8. His service record indicates he failed an APFT administered on 10 June 2008. He subsequently failed end of cycle (EOC) course APFTs administered on 1 July and 22 July 2008. 9. His service record includes a DA Form 3349 (Physical Profile), dated 17 October 2008 showing he received a permanent profile for shin splints (lower extremities rating of 2) with a combined functional physical profile rating of PULHES 112111. The medical profiling official stated the applicant could not complete the 2-mile run event of the AFPT. He was authorized an alternate APFT aerobic activity event – walking. He was instructed to run at his own pace. 10. As he was required to successfully complete an APFT for graduation, he was administered three more APFTs including an alternate aerobic activity during each APFT. The dates of the APFTs were 27 October 2008 and 3 November 2008. He failed all three events including the alternate aerobic event of walking a specified distance in a specified period of time. 11. On 3 November 2008, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from on or about 30 August 2008 to on or about 4 September 2008. 12. His service record includes numerous DA Forms 4856 (Developmental Counseling Form) showing he received adverse counseling for failing to report from accountability formation, disobeying a noncommissioned officer, failing his EOC APFT on multiple dates, and failing to report for corrective training. 13. He underwent a mental status evaluation on 24 November 2008. The psychiatrist stated the applicant was seen at the Behavioral Health Clinic on 21 November 2008. The psychiatrist stated the applicant had no mental condition or defect which would warrant his disposition through medical channels and was cleared for administrative action as deemed appropriate by command. 14. On 22 January 2009, he again failed all three APFT events to include the authorized alternate aerobic event as prescribed by his physical profile. [It is a timed event. He failed to walk the required distance in the specified time.] This appears to be his final EOC APFT. At that point his unit commander notified the applicant of the proposed recommendation to discharge him under the provisions of Army Regulation 635-200, paragraph 13-2e for failing five EOC AFPTs [which included an alternate aerobic activity due to his profile limitations.] He was advised of his rights. He acknowledged receipt of the pending separation action, waived consultation with counsel, and did not submit statements in his own behalf. 15. On 11 February 2009, the separation authority waived rehabilitative transfer requirements and directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with his service characterized as general under honorable conditions. 16. On 15 July 2011, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13, paragraph 13-2f, in effect at the time, states that initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the APFT per Army Regulation 350-41 (Training in Units), 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 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 is characterized as honorable or under honorable conditions. b. 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. DISCUSSION: 1. The applicant had two periods of service for which he was administratively separated for unsatisfactory duty performance for failing required APFTs. During his second enlistment period, he was issued a profile authorizing an alternate aerobic activity of walking due chronic shin splits. However, even with the alternate activity, he consistently failed all three events including the walking event during the administration of three APFTs. 2. Throughout both periods of service, he received counseling by his chain of command due to failure to comply with APFT standards. Additionally he was counseled for failing to report and disobeying orders. The applicant's service record shows he received an Article 15 for being AWOL during his second enlistment period. 3. It appears two different separation authorities determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a fully honorable discharge. His two periods of service were characterized as general under honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016062 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016062 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2