BOARD DATE: 24 July 2020 DOCKET NUMBER: AR20200000835 APPLICANT REQUESTS: The applicant requests removal of ?Unsatisfactory Performance? from his DD Form 214 (Certificate of Release or Discharge from Active Duty), item 28 (Narrative Reason for Separation). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states the narrative reason unsatisfactory performance was totally an unjust statement and it was given to him with willful hatred with the intent to discredit or insult him. but his performance was never unsatisfactory nor was there ever any paperwork issued to include such a statement during his enlistment. 3. On 7 September 1984, at the age of 17 years old, the applicant enlisted in the Regular Army for a term of 3 years. After completing initial entry training, on 27 March 1985, the applicant was assigned to Aberdeen Proving Grounds, MD. 4. He accepted nonjudicial punishment (NJP) on: a. 20 August 1985 for, on three occasions, failing to go at the time prescribed to his appointed place of duty b. 30 September 1985 for failing to go at the time prescribed to his appointed place of duty. He was punished to reduction to E-1, forfeiture of $310.00 pay for two months, restriction for 30 days, and extra duty for 30 days. He appealed his NJP and the appeal was granted in that his restriction was suspended until 16 April 1986. c. 12 November 1985 for failing to go at the time prescribed at his appointed place of duty. 5. His record contains 14 counseling statements (13 for unsatisfactory performance and 1 for outstanding performance) completed from 29 April 1985 to 17 October 1985, for, but not limited to: causing an automobile accident and failing to report the accident, failing to be at the time prescribed at his appointed place duty on multiple occasions, and being disrespectful language to a civilian. On 26 June 1985, he received positive counseling for his outstanding performance and attitude and was informed that he would be recommended for promotion to Private First Class. 6. On 30 September 1985, he underwent a mental status evaluation and he was cleared for separation. On 4 October 1985, he completed a SF 93 (Report of Medical History), which he indicated he was excellent condition. His SF 88 (Report of Medical Examination) shows his clinical evaluation was normal with the exception of his heart; he had a heart murmur, which was not previously documented. The cardiology consult concluded it was normal and warranted no further evaluation. He was medically cleared for separation. 7. On 23 October 1985, the applicant’s immediate commander notified him that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), Chapter 13, for unsatisfactory performance. The reasons for his actions were since his assignment to the unit on 27 March 1985, he had continually demonstrated an unwillingness and inability to conform to military standards and discipline. He had been a disruptive influence in every section to which he had been assigned. He had not developed leadership traits or career advancement potential within his military occupational specialty. His retention in the U.S. Army would be prejudicial to military discipline, good order, and morale. The commander advised him of his available rights. 8. The applicant acknowledged he had been notified by his consulting counsel of the pending separation action against him and the basis for the contemplated action to separate him under AR 635-200, Chapter 13. He elected to submit a statement on his own behalf. He stated: a. He did not make every beneficial decision in the past but his decisions were not all wrong. He was writing to prove himself to the utmost. Now that he was down at TRD working for Captain M. and Master Sergeant W., he had been striving to be the excellent and the professional Soldier he could be with all his ability. He did not get into trouble on purpose. He was wrong and paid for it but at the time he wanted to be the best Soldier in the U.S. Army. b. He had more responsibility than ever. He was married and he would not do anything to jeopardize his wife or himself in any way. He had noncommissioned officers who thought he should be retained in the Army because they felt he was producing and could produce more. He was not such a bad guy. He just wanted to do his job and move up in the Army ranks. He felt he was making a 360-degree turn around. He asked the command to give him another chance and he would prove them right. 9. The chain of command recommended approval of the separation, and on 18 November 1985, the appropriate separation authority approved the recommendation for separation and directed he be issued a General Discharge Certificate. 10. On 22 November 1985, the applicant was discharged accordingly. His service was characterized as general under honorable conditions. He completed 1 year, 2 months, and 16 days of net active service. His DD Form 214 shows: * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): * Army Service Ribbon * Rifle Marksman Marksmanship Qualification Badge * Hand Grenade Sharpshooter Marksmanship Qualification Badge * Item 21 (Signature of Member Being Separated): The applicant?s signature * Item 25 (Separation Authority): AR 635-200, Chapter 13 (Separation for Unsatisfactory Performance) * Item 26 (Separation Code): JHJ * Item 28 (Narrative Reason for Separation): Unsatisfactory Performance * Item 30 (Member Requests Copy 4): The applicants initials 11. On 14 November 1987, the Army Discharge Review Board denied his petition for an upgrade of his discharge, determining he was properly and equitably discharged. 12. AR 635-200 states Soldiers separated for unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. Chapter 13 prescribed procedures for separating members for unsatisfactory performance; service will be characterized as honorable or under honorable conditions. 13. AR 635-5 (Separation Documents) states for DD Form 214, item 28, enter the reason for separation shown in AR 635-5-1 based on the regulatory or statutory authority. 14. AR 635-5-1 (Separation Program Designators (SPD)), in effect at the time states for the Authority AR 635-200, chapter 13 the reason should read ?Unsatisfactory Performance? and the SPD ?JHJ.? 15. In reaching its determination, the Board can consider the applicant's petition, his service record and post-service accomplishments in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of changes to discharges. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, his frequent counseling documenting his poor performance, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the reason for discharge recorded on the applicant's DD Form 214 not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 13 (Separation for Unsatisfactory Performance) established policy and prescribed procedures for separating members for unsatisfactory performance. Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. It stated commanders would separate a Soldier for unsatisfactory performance when: * it was clearly established that in the commander's judgment, the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier; * or the seriousness of the circumstances was such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale; * and it was likely that the Soldier would be a disruptive influence in present or future duty assignments; * and it was likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur; * and the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, was unlikely; * and the member meets retention medical standards b. AR 635-5 (Separation Documents), in effect at the time, prescribed the separation documents with are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing DD Form 214. It states for DD Form 214, item 28, enter the reason for separation shown in AR 635-5-1 (Separation Program Designators (SPD)) based on the regulatory or statutory authority. 3. AR 635-5-1, in effect at the time, prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. It states for the Authority AR 635-200, chapter 13 the reason should read ?Unsatisfactory Performance? and the SPD ?JHJ.? 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000835 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000835 6 ABCMR Record of Proceedings (cont) AR20200000835 5