IN THE CASE OF:	  

		BOARD DATE:  29 January 2013

		DOCKET NUMBER:  AR20120011745 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

* Item 1 (Name (Last, First, Middle)), from "Frxxxxx, Joxxxxx" to "Doxxxxxxx, Jaxxx Joxxxx"
* Item 28 (Narrative Reason for Separation), from "Expeditious Discharge Program (EDP) - Failure to Maintain Acceptable Standards for Retention" to "Hardship"

2.  The applicant states:

* The name change was implemented by the court
* He had a family hardship while on duty

3.  The applicant provides:

* DD Form 214
* State driver license
* Judgment for change of name
* Certificate of naturalization

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 13 June 1978.  His DD Form 4 (Enlistment or Reenlistment Document - Armed Forces of the United States) and all allied documents listed his name as "Frxxxxx, Joxxxxx."  He authenticated all documents associated with his enlistment process using this name.  

3.  His DA Form 2-1 (Personnel Qualification Record) that was created upon his entrance into the Army shows the same full name as that shown on his enlistment document.  He reviewed this form at a later date and authenticated it by placing his signature in the appropriate block using the name of "Frxxxxx, Joxxxxx".

4.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 19F (Tank Driver).  The highest rank/grade he attained during his military service was private/E-2.  

5.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Pistol Bar.  He was assigned to the 3rd Squadron, 3rd Armored Cavalry Regiment, Fort Bliss, TX.

6.  His records show he was frequently counseled by members of his chain of command for various infractions including substandard performance, disobeying orders, missing appointments, failing to report, lack of motivation, failing to take responsibility for his own actions, being late for formation, problems accepting orders, and other infractions.

7.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 6 December 1978, failing to go at the time prescribed to his appointed place of duty on three separate occasions
* 1 June 1979, stealing a stereo and two speakers from another Soldier

8.  On 6 March 1980, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of paragraph 5-31 (Expeditious Discharge Program (EDP)) of Army Regulation 635-200 (Personnel Separations) by reason of poor attitude, poor job performance, and inability to adapt to the demands of military life.  

9.  On 12 March 1980, the applicant acknowledged notification of the proposed separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, Army Regulation 635-200, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  He acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He further voluntarily consented to this separation.

10.  Subsequent to this acknowledgement, on 18 March 1980, the applicant's immediate commander initiated separation action against him under the EDP.  The immediate commander recommended a general, under honorable conditions discharge.

11.  On 20 March 1980, the separation authority approved the discharge under the provisions of paragraph 5-31 of Army Regulation 635-200 for failure to meet acceptable standards for continued service and directed that he receive an Honorable Discharge Certificate. 

12.  On 21 March 1980, Headquarters, U.S. Army Air Defense Center and Fort Bliss, Fort Bliss, TX, published official orders directing his discharge effective 25 March 1980.  The orders listed his full name as "Frxxxxx, Joxxxxx."

13.  On 25 March 1980, the applicant was accordingly discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200 with an honorable characterization of service.  He completed 1 year, 9 months, and 13 days of creditable active military service.  This form also shows in:

* Item 1 - "Frxxxxx, Joxxxxx"
* Item 26 (Separation Code) - "JGH"
* Item 28 - "Expeditious Discharge Program (EDP) - Failure to Maintain Acceptable Standards for Retention"

14.  He submitted:

	a.  A state driver license, issued on 11 July 2011 that listed the requested name. 

	b.  A court order, dated 6 mat 1986, approving his name change from the contested to the requested name.

	c.  A Certificate of naturalization, dated 22 February 2005, reflecting the requested name.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

16.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs that the purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the name change:

	a.  The evidence of record shows that upon enlistment in the Army, the applicant listed his name as "Frxxxxx, Joxxxxx".  This full name is consistent with the full name that he used throughout his period of military service.  He authenticated the documents in his record indicating that his name was correct.  He did not use the requested name during his period of military service.

	b.  For historical purposes, 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.  

	c.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to now record a different name in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army's records.

2.  With respect to the narrative reason for separation:

	a.  The evidence of record shows he continually displayed a lack of self-discipline and inability to conform to military rules as evidenced by his multiple negative counseling and two instances of NJP.  Accordingly, his chain of command initiated separation action against him and he voluntarily consented to discharge under the EDP.  

	b.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

	c.  His narrative reason was assigned based on the fact that he displayed a poor attitude, a poor job performance, and an inability to adapt to the demands of military life.  Absent those issues, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his failure to maintain acceptable standards for retention.  The only valid narrative reason for separation permitted under that paragraph is "EDP - Failure to Maintain Acceptable Standards for Retention" and the appropriate separation code associated with this discharge is "JGH" which is correctly shown on his DD Form 214.  

	d.  There is no evidence in his records and he provides none to support his contention that he had a family hardship or that he requested assistance through his chain of command or other support channels. 

	e.  His narrative reason for separation appears to be correct and he provides insufficient evidence to support changing this reason.




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)                                         AR20120011745





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ABCMR Record of Proceedings (cont)                                         AR20120011745



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