IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150005957 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 upgrade of his general, under honorable conditions discharge and a change to the narrative reason for his separation. He also requests, in effect, correction of his military service records to show his birth name. 2. The applicant states he entered military service with the name George Earl L____, which he used as a matter of convenience. However, his birth name is George Earl M____ II. The reason for his discharge is shown as "Unsuitability – Apathy, Defective Attitude or Inability to Expend Effort Constructively." However, he did all he was asked and also performed his duties to the best of his ability. He requests upgrade of his discharge to honorable and states that the narrative reason of only "Unsuitability" would be alright. 3. The applicant provides no documentary evidence in support of his 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. A DD Form 1966 (Application for Enlistment – Armed Forces of the United States), completed during the applicant's enlistment processing, certified by him on 26 April 1980, and recertified by him on 20 May 1980, shows in: a. section V (Certifications) – * item 39 (Certification of Applicant), in part, "I certify that the information given by me in this document is true, complete, and correct to the best of my knowledge and belief." * block b (Typed or Printed Name): "George Earl L____" * block c (Signature): the applicant signed, "George E L____" * item 40 (Data Verification by Recruiter), block a (Name), the entry, "Birth Certificate" * section X (Statement of Name for Official Military Records), item 48 (If the preferred enlistment name is not the same as on your birth certificate and it has not been changed by legal procedure prescribed by state law, complete the following), shows the entry, "M____, George Earl II." It also shows, "I hereby state that I have not changed my name through any court or other legal procedure, that I prefer to use the name of "L____, George Earl" by which I am known in the community as a matter of convenience and with no criminal intent. I further state that I am the same person as the person whose name is shown in block 2." b. The applicant and recruiter placed their signatures on the document. 3. A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve (USAR) on 26 April 1980 for a period of 6 years and that he further enlisted in the Regular Army (RA) on 20 May 1980 for a period of 3 years. a. It also shows in item 1 (Name): "L____, George Earl" b. The applicant placed his signature on the document on 26 April 1980 and also on 20 May 1980. 4. Documents in the applicant's military personnel record consistently show his name as "L____, George Earl" throughout the period of his service. 5. He received nonjudicial punishment (NJP) on two occasions for: * being absent without leave (AWOL) on three occasions: * from 29 August 1980 to 8 September 1980 * from 11 September 1980 to 15 September 1980 * from 19 September 1980 to 23 September 1980 * being AWOL on two occasions: * from 27 October 1980 to 6 November 1980 * from 8 November 1980 to 10 November 1980 6. On 12 and 26 November 1980, the Commander, Company D, 15th Battalion, 4th Combat Support Training Brigade, Fort Jackson, SC, counseled the applicant on his poor performance in advanced individual training and also his numerous absences without authority. 7. On 26 November 1980, the applicant's commander notified him that he was initiating action to discharge him under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability due to his apathetic attitude toward his responsibilities and continual absence without authority. The applicant was advised of his rights and the separation procedures involved. 8. The applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights. a. He waived consideration of his case by a board of officers. b. He waived a personal appearance before an administrative separation board. c. He indicated that he would not submit statements in his own behalf. d. He acknowledged that military legal counsel for consultation was available to assist him; however, he waived representation by counsel. e. He was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him. f. He acknowledged he understood that if he received an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. g. The applicant placed his signature on the document. 9. The chain of command recommended approval of the applicant's separation action. 10. The separation authority waived further counseling and rehabilitative transfer requirements, and approved the commander's recommendation for discharge of the applicant for unsuitability with a General Discharge Certificate. 11. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 20 May 1980 and was discharged on 11 December 1980 UP AR 635-200, paragraph 13-4c(2). He had completed 5 months and 15 days of creditable active service and he had 37 days of time lost. It also shows in: * item 1 (Last Name - First Name - Middle Name): "L____, George Earl" * item 18 (Remarks), the entry "Nothing Follows" (no entries) * item 21 (Signature of Member Being Separated), the applicant's signature (i.e., "George E. L____") * item 24 (Character of Service): "Under Honorable Conditions" * item 26 (Separation Code): "JMJ" * item 28 (Narrative Reason for Separation): "Unsuitability – Apathy, Defective Attitude or Inability to Expend Effort Constructively" 12. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the Board's 15-year statute of limitations. 13. AR 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. a. Chapter 13, in effect at that time, provided for separation of enlisted members found to be unfit or unsuitable for further military service. Separation action would be taken when, in the commander's judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unfitness under this regulation was characterized as under other than honorable conditions, except that an honorable or under honorable conditions discharge could be issued if warranted by the particular circumstances in the Soldier's case. b. Chapter 3, paragraph 3-7a, provides 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 14. AR 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents. The purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation. Therefore, it is important the information entered thereon is complete and accurate as of that date. a. Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214. It states that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders. b. The instructions state for: * item 1, enter name in all capital letters; include "JR," "SR," or "II" when needed * item 28, enter the reason for separation shown in AR 635-5-1 (Separation Program Designators (SPD)) based on the regulatory or statutory authority 15. AR 635-5-1, in effect at the time of the applicant's separation, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It shows for enlisted Soldiers involuntarily discharged UP AR 635-200, paragraph 13-4c(2), "Unsuitability – Apathy, Defective Attitude or Inability to Expend Effort Constructively" is the appropriate entry for item 28 of the DD Form 214. (It also shows SPD code "JMJ" is the appropriate entry for item 26 (Separation Code).) DISCUSSION AND CONCLUSIONS: 1. The applicant contends, in effect, that the name recorded in his military service records should be corrected to show his birth name because he used a preferred name as a matter of convenience. He also contends his discharge should be upgraded, along with a change to the reason for his separation. 2. The evidence of record shows that upon enlistment in the U.S. Army the applicant's name was recorded in his military records as "George Earl L____." At that time, the applicant indicated that he chose to use that name rather than his birth name (i.e., "George Earl M____ II"). 3. The applicant's military service records clearly show his preferred name and that he signed numerous documents using that name. In addition, the applicant's preferred name was consistently recorded in his official military service records, including on his DD Form 214, when he was discharged from the U.S. Army. 4. Considering all the evidence and information presented by the applicant, together with the evidence of record, applicable law, and regulations, the applicant offers insufficient evidence to warrant a change to the name in his official military service records. 5. For historical purposes, the Army has an interest in maintaining the integrity 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. 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 his correct birth 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. 6. The applicant's discharge UP AR 635-200, chapter 13, for unsuitability based on his apathetic attitude toward his responsibilities and numerous incidents of unauthorized absence was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights. a. The evidence of record shows the entry in item 28 of his DD Form 214 is the correct entry for a Soldier discharged UP AR 635-200, paragraph 13-4c(2). b. During the period of service under review the applicant was counseled on his apathetic attitude toward his responsibilities, he received NJP on two occasions for five incidents of AWOL totaling 37 days of lost time, and he completed less than 6 months of his 3-year service obligation. Based on the applicant's record of indiscipline, his service does not meet the standards of acceptable conduct and performance of duty for Army personnel to merit an honorable discharge. c. Considering all the facts of this case, the narrative reason for his separation and characterization of discharge were appropriate and equitable. 7. However, based on the evidence of record, the applicant's request for correction of his name has a degree of merit and it would be appropriate to issue a DD Form 215 (Correction of DD Form 214) correcting his DD Form 214 by adding his birth name to item 18 of the DD Form 214. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 issuing a DD Form 215 to add to item 18 of his DD Form 214 the birth name shown on his DD Form 1966 (e.g., REFERENCE ITEM 1: BIRTH NAME: GEORGE EARL M____ II). 2. The Board further determined that 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 completely changing his name in his official military service records, changing the narrative reason for his separation, and upgrading his discharge. _______ _ 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) AR20150005957 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005957 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1