BOARD DATE:	 8 March 2012 

		DOCKET NUMBER:  AR20110017670 


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 and that his military records be changed to reflect his name as Axxxx-Bxxx Wxxx instead of Jxxxx Lxxxx Sxxx Jx.

2.  He states he is requesting an upgrade of his discharge due to an injury while in the military.  He states, in effect, after he was discharged he changed his legal name and wishes to have his military records show Axxxx-Bxxx Wxxx as his legal and binding name.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of a Superior Court of New Jersey document authorizing a name change.

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.  He enlisted in the Regular Army on 13 January 1981.  The highest rank/grade he held was private/E-2.

3.  His records show he accepted nonjudicial punishment (NJP) on 30 October 1981, for operating a privately owned vehicle (POV) without a permit; with intent to deceive, wrongfully having in his possession another's military identification card; and with intent to deceive, wrongfully having in his possession another's POV driver's license.

4.  His records show he was counseled on five occasions for failing to perform his duties or failing to comply with orders from his superiors.

5.  On 22 March 1982, his commander informed him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 under the Expeditious Discharge Program (EDP).  The reasons stated for the proposed action were the applicant's inability to adapt to military service as demonstrated by his lack of productive output and his lack of willingness to apply himself or to respond to corrections and guidance.  His continual outbursts directed at personnel superior in rank to him and his unwillingness to accept responsibility for his actions had made him a disruptive force within the unit.

6.  On 1 April 1982, the applicant acknowledged notification of his proposed separation under the provisions of Army Regulation 635-200, paragraph 5-31.  He elected not to submit a statement in his own behalf.  He further acknowledged he understood if his service was characterized as under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  He further acknowledged that he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps.

7.  His commander's recommendation for elimination under the provisions of Army Regulation 635-200, paragraph 5-31 indicates the applicant accepted NJP on three occasions and was counseled five times.

8.  On 5 April 1982, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-31 and directed the issuance of a General Discharge Certificate.

9.  On 23 April 1982, the applicant was discharged accordingly.  The DD Form 214 he was issued at that time shows he completed 1 year, 3 months, and 11 days of creditable active service.

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

11.  Throughout his official military record his name is shown as Jxxxx Lxxxx Sxxx Jx.  His DD Form 214 authenticated in his own hand shows his name as Jxxxx Lxxxx Sxxx Jx.

12.  The applicant provides a copy of a Superior Court of New Jersey document authorizing his name change from Jxxxx Lxxxx Sxxx Jx to Axxxx-Bxxx Wxxx on 19 October 2006.

13.  Army Regulation 635-200, paragraph 5-31, in effect at the time, provides that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed to respond to counseling.  The purpose of this policy was to provide for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  These provisions were intended to relieve unit commanders of the administrative burden normally associated with processing eliminations for cause through administrative separation boards by providing a means to separate such personnel expeditiously before they progress to the point where board or punitive action became necessary.  Individual characteristics that would assist in identifying members who should not be retained in the Army included, but were not limited to the following:

* poor attitude
* lack of motivation
* lack of self-discipline
* inability to adapt socially or emotionally
* failure to demonstrate promotion potential

14.  These provisions were intended to relieve unit commanders of the administrative burden normally associated with processing eliminations for cause through administrative separation boards by providing a means to separate such personnel expeditiously before they progress to the point where board or punitive action became necessary.

15.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in his record and he has not submitted any evidence showing he was injured on active duty.  Even if he had, it would not be a basis to upgrade his expeditious discharge.

2.  His records show he received nonjudicial punishment on three occasions and was counseled five times.

3.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  The applicant requests that his military records reflect he served under the name of Axxxx-Bxxx Wxxx.

6.  His records show he enlisted and served under the name of Jxxxx Lxxxx Sxxx Jx.

7.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.

8.  Although the applicant provides a copy of a court document authorizing his name change to Axxxx-Bxxx Wxxx, he appropriately served in and was discharged under the name he provided upon his entry into the Army.  The document submitted by the applicant shows he legally changed his name 24 years after he was discharged.

9.  In the absence of compelling information to the contrary, there is no basis for changing the records in this case.

10.  A copy of this decisional document, which confirms his legal name change, will be filed in the applicant's Official Military Personnel File.  This should serve to clarify any questions or confusion regarding the different names, and adequately document his name change in his record.

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)                                         AR20110017670



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ABCMR Record of Proceedings (cont)                                         AR20110017670



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