IN THE CASE OF:	  

		BOARD DATE:	        05 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017395 


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, in effect, that his general discharge be upgraded to an honorable discharge and that his military records be corrected to show that his middle name is Alphonso instead of Alfonso.

2.  The applicant essentially states that he has been a model citizen and a positive influence in his community and to society since his discharge.  He also states, in effect, that his discharge was a product of racism, but that he has moved on with his life since then.  He further states that the first year and a half in the military was good, that only the latter part was not so good, and that his company commander in the unit he was transferred to was racist in his opinion.  Additionally, he states that his commander gave him the opportunity to get out and that he took that opportunity; otherwise, he would have completed 20 years of military service.  Further, he states that his correct middle name is shown on his social security card and that his middle name on his DD Form 214 (Certificate of Release or Discharge from Active Duty) is incorrect.

3.  The applicant provides his DD Form 214 and social security card; his diploma, dated 18 October 1990, which shows that he completed high school by correspondence; a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 14 August 2008; a letter, dated 29 August 2008, from the Army Review Boards Agency Support Division in St. Louis, Missouri; a records check from the Miami-Dade County, Florida Police Department, dated 5 August 2008; an unsigned third-party letter, dated 25 July 2008; and a second third-party letter, dated 31 July 2008, in support of this application.
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's military records show that he enlisted in the Regular Army on 22 August 1979 for a period of 3 years and training in military occupational specialty (MOS) 76D (Materiel Supply Specialist).  He completed basic combat training, but failed to complete advanced individual training in MOS 76D.  He was then reassigned to Fort Sill, Oklahoma, for training in MOS 13B (Cannon Crewman), which he completed.  He then was reassigned to Fort Ord, California, for what would be his only permanent duty station.

3.  Between 21 August 1980 and 26 February 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions.  His offenses included failing to go at the time prescribed to his appointed place of duty on four occasions, leaving without authority from his appointed place of duty, being disrespectful in language towards his superior noncommissioned officer, and failing to obey a lawful order issued by a colonel.  Collectively, his punishment consisted of two reductions in rank, forfeiture of $422.00, correctional custody for 7 days, extra duty for 21 days, and restriction for 7 days.

4.  On 12 April 1982, the applicant’s company commander notified him that he was initiating action to discharge him from the United States Army under the provisions of paragraph 5-31 (Expeditious Discharge Program), Army Regulation 635-200 (Enlisted Personnel).  He also essentially recommended that the applicant be furnished a General Discharge Certificate.  The reasons for his proposed actions were that the applicant had continually displayed an apathetic attitude concerning his job.  He also indicated that the applicant's disrespectful attitude toward his superiors and his complete disregard for conforming to Army regulations had resulted in him being administered NJP under the UCMJ on "4" occasions, and that he had shown little or no effort to improve his performance despite numerous counseling sessions.  The applicant was also advised of his rights.

5.  Also on 12 April 1982, the applicant acknowledged notification of his proposed separation from the United States Army under the provisions of paragraph 5-31, Army Regulation 635-200, and voluntarily consented to his separation.  He elected not to submit statements in his own behalf.  He also understood that if his service was characterized as under honorable conditions, he could expect to encounter substantial prejudice in civilian life, and acknowledged that he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps.

6.  That same day, the proper authority approved the applicant’s discharge under the provisions of the paragraph 5-31, Army Regulation 635-200, and directed that he receive a General Discharge Certificate.  On 15 April 1982, the applicant was discharged accordingly.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  The applicant provided two third-party letters of support.  The author of the unsigned third-party letter essentially stated that he has known the applicant for about 20 years, and that he is a friend of his.  He also stated, in pertinent part, that the applicant was always at work and on time, and that he is a top-flight person who is always courteous and pleasant, and that he has never known him to have a problem or be a problem to anyone.  The author of the second third-party letter essentially stated that he also has known the applicant for about 20 years, and that the applicant is a courteous, polite, and helpful person who would give the shirt off his back and last penny from his pocket to help someone. He also stated that he has never seen the applicant hurt anyone or be disrespectful, and that the applicant is always trying to make a difference.

9.  The applicant’s entire military records which have his middle name spelled out have his middle name typed as Alfonso. The preponderance of full signatures in his military records, including his DA Form 2-1 (Personnel Qualification Record), DD Form 93 (Record of Emergency Data), and VA Form 29-8286 (Servicemen's Group Life Insurance Election) also show that he signed with the middle name of Alfonso.  The applicant's DD Form 214 does not bear his full signature, but this document also shows that his middle name was typed as Alfonso.

10.  The applicant provided a social security card which shows that his middle name is spelled Alphonso.
11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31, then in effect, provided the policy and outlined the procedures for separating individuals under the Expeditious Discharge Program.  This program provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An honorable or general discharge could be issued under this program.

12.  Army Regulation 635-200, paragraph 3-7a, in effect at the time, provided 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the active Army.  Chapter 2 contains guidance on the preparation and distribution of the DD Form 214.  Paragraph 2-4 contains item-by-item instructions for completion of the DD Form 214 and it states, in pertinent part, that item 1 will contain the name taken from the Soldier’s personnel record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge and that his military records should be corrected to show that his middle name is Alphonso instead of Alfonso.

2.  The evidence provided by the applicant regarding his request for upgrade of his discharge was carefully considered.  The applicant's contentions regarding his post service achievements and conduct were considered.  However, good post service conduct alone is not a basis for upgrading a discharge.

3.  The applicant's contention that his discharge was a product of racism was considered, but not found to have any merit.  There is no evidence in the applicant's military records and the applicant failed to provide any evidence to support his contention that his discharge was racially motivated.

4.  Evidence of record shows the applicant accepted NJP under Article 15 of the UCMJ on five occasions for multiple offenses of the UCMJ.  Given the number of instances of misconduct, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

5.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

6.  The evidence provided by the applicant, in the form of a social security card showing that his middle name is Alphonso, was considered.  However, there is no evidence of record or independent evidence that suggests the middle name recorded in his military records exhibits a material error or injustice.

7.  It appears that the applicant enlisted, served, and was discharged from the Army of the United States under the middle name Alfonso, and that his service in the Regular Army was fully served under this middle name.  The fact that he now, more than 26 years after his discharge, requests that his middle name in his military records be changed from Alfonso to Alphonso is not a sufficiently mitigating factor that warrants granting the requested relief.

8.  There is no evidence that suggests the applicant has or would suffer any injury or injustice as a result of the Army maintaining its records with the last name under which he served.  The Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  While it is understandable the applicant desires to now record what he states is his correct middle name in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.

9.  The applicant is advised that a copy of this decisional document, along with his application and the supporting evidence he provided, will be filed in his Official Military Personnel File.  This should serve to clarify any questions or confusion in regard to the difference in the middle name recorded in his military record and the middle name he now claims is his correct middle name.
10.  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 this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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.



      _________XXX________________
                 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)                                         AR20080017395



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ABCMR Record of Proceedings (cont)                                         AR20080017395



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