IN THE CASE OF:	  

		BOARD DATE:  27 June 2013

		DOCKET NUMBER:  AR20120022162 


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 that his undesirable discharge be upgraded to general under honorable conditions.  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his last name as "___LES" instead of "___ELS."

2.  The applicant states his grandmother had passed and he had requested to go home to attend the funeral but his sergeant denied his request.  He contends that he was discharged due to racial discrimination.

3.  The applicant provides a DD Form 214 and a copy of his State issued identification (ID) card.

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.  On 21 September 1971, he completed a DD Form 398 (Statement of Personal History) and listed his last name as "___ELS."  

3.  He enlisted in the Regular Army on 28 September 1971.  His DD Form 4 (Enlistment Contract) shows his last name as "___ELS."

4.  His military records include a DA Form 3349 (Medical Condition - Physical Profile Record), a Clinical Record, and a Chronological Record of Medical Care that show his last name as "___LES."

5.  On 27 April 1972, he was found guilty by a special court-martial of unlawfully striking another Soldier in the back with his fist.  Part of the sentence consisted of confinement at hard labor for 6 months.

6.  On 13 July 1972, the applicant's immediate commander recommended his discharge from the Army under the provisions of Army Regulation 625-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness with an Undesirable Discharge Certificate.  The commander stated the following:

* during the applicant's short period on active duty, he had received one special court-martial conviction for assault
* upon his arrival at the confinement training facility, he stated that he would not return to duty and that if forced to return, he would surely commit another act of misconduct 
* the applicant was counseled by members of the leadership team, unit social worker, and by himself (commander) concerning his negative approach to his future and his refusal to function as a Soldier 
* on 26 June 1972, he was involved in an assault on a trainee and also threatened another trainee with bodily harm if he testified against him 
* he was placed in disciplinary segregation (DS) and while in DS, he continued to express his desire to be released from the military 
* he had been repeatedly evaluated as unsatisfactory in his willingness to accept responsibility for his actions or appearance and he also demonstrated that he had no desire to meet minimum standards expected of a Soldier
* he was capable of meeting the standards expected but because he wanted to be released from the Army, he was shirking in his performance
* his recommendation for a discharge as unfit was based on the applicant's shirking, acts of misconduct, negative attitude 

7.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for unfitness, of his right to present his case before a board of officers, to submit a statement in his own behalf, and to be represented by counsel.  He elected to waive his rights.  He also indicated that he understood he might expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him.  He also understood that as a result of the issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.  He did not submit any statement in his own behalf. 

8.  His battalion commander concurred with the recommendation for discharge and recommended the issuance of an Undesirable Discharge Certificate.

9.  On 13 July 1972, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 and directed the issuance of an Undesirable Discharge Certificate.  He was discharged on 25 July 1972 with his service characterized as under conditions other than honorable.  He completed 
6 months and 9 days of active duty service.

10.  He provides a copy of his State-issued ID card that shows the spelling of his last name as "___LES."

11.  The Army Discharge Review Board denied his requests for an upgrade of his undesirable discharge on 24 August 1979 and on 17 May 1983.

12.  Army Regulation 635-212, in effect at the time, provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7b, provides 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because his discharge was based on racial discrimination has been carefully considered.  

2.  There is no evidence in his military records, and he provided none, substantiating his contention that he was a victim of racial discrimination.

3.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  He consulted with legal counsel; he was advised of the basis for the separation action; he was provided the opportunity to present his case before a board of officers; and he had the opportunity to submit statements in his own behalf, which he elected not to do.  Therefore, all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  During his brief period of active duty service, his record of indiscipline included a court-martial conviction for assault, a threat of bodily harm to another Soldier, and shirking.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to general, under honorable conditions.

5.  Although his DD Form 4 and DD Form 398 show he listed his last name as "___ELS," there is evidence in his military records that shows he also listed his last name as "___LES."  Additionally, his State-issued ID card shows the spelling of his last name as "___LES."  Therefore, it would be appropriate to correct his DD Form 214 to show the spelling of his last name as "___LES."

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show the spelling of his last name as shown on his State-issued ID card.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his undesirable discharge to general, under honorable conditions.  



      _______ _  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)                                         AR20120022162



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ABCMR Record of Proceedings (cont)                                         AR20120022162



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