BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150003260 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 military records to show his legal name and upgrade of his bad conduct discharge. 2. The applicant states he was 19 years old when he enlisted in the U.S. Army. He made a mistake and received a bad conduct discharge. It has been almost 20 years since he was discharged. He is now 40 years of age, enrolled in college, and a productive member of society. He adds that his last name was legally changed from "G____" to "K____." 3. The applicant provides a copy of the court document that ordered his legal 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. A DD Form 398 (National Agency Questionnaire), completed by the applicant on 18 December 1993, shows in: * item 1 (Name – Last, First, Middle): "G____, Gregory Alexander" * item 2 (Other Names Used – First, Middle, Last): is blank (no entries) 3. The applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve on 11 January 1994 for a period of 4 years and he further enlisted in the Regular Army on 24 February 1994 for a period of 4 years. At the time he was 19 years of age. It also shows: * in item 1 (Name: Last – First – Middle): "G____, Gregory Alexander" * that he signed the form with the signature "Gregory Alexander G___" 4. The applicant's military service records consistently show the name "Gregory Alexander G____." 5. Headquarters, 2nd Infantry Division (Korea), General Court-Martial Order Number 6, dated 27 February 1995, shows the applicant was tried by a general court-martial. a. He was found guilty of: * Article 121 (Larceny and Wrongful Appropriation), Uniform Code of Military Justice (UCMJ), for stealing a check of some value from another Soldier, between 1 September and 23 September 1994 (two specifications) * Article 134 (General Article), UCMJ, for: * through false pretenses and with intent to defraud, wrongfully obtaining a loan from a bank, of a value of about $1,500.00, on 28 July 1994 * through false pretenses and with intent to defraud, wrongfully obtaining long distance telephone services, of a value of about $1,413.97, between 27 August 1994 and 5 September 1994 * wrongfully communicating a threat to injure another Soldier, on 24 September 1994 b. On 29 December 1994, he was sentenced to forfeiture of $400.00 pay per month for 6 months, confinement for 6 months, and a bad conduct discharge. c. The Staff Judge Advocate's review shows a pre-trial agreement specified that the convening authority would not approve more than 24 months of confinement. d. On 27 February 1995, the General Court-Martial Convening Authority approved the sentence, except for the bad conduct discharge, which was suspended pending appellate review. 6. On 16 May 1995, the U.S. Army Court of Criminal Appeals, on consideration of the entire record, including the issues personally specified by the applicant, affirmed the findings of guilty and the sentence. 7. A "Corrected Copy" of Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, General Court-Martial Order Number 104, dated 4 November 1996, confirmed that the applicant's court-martial sentence was affirmed. The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed. 8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated on 10 December 1996 with a bad conduct discharge. He was credited with 9 months and 25 days of net active service this period. He had time lost due to confinement from 29 December 1994 to 26 February 1995. It also shows in item 1 (Name: Last – First – Middle): "G____, Gregory Alexander." 9. In support of his application the applicant provides a copy of a legal document from the Superior Court of Fulton, State of Georgia, Family Division, Final Decree Changing Name of an Adult, which shows the applicant's name was legally changed from "Gregory Alexander G____" to "Gregory Alexander K____" on 9 January 2013. 10. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides that a member will be given a dishonorable or a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered executed. 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. c. Chapter 3, 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. 11. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected to show his current legal name and upgrade of his bad conduct discharge. 2. The evidence of record shows that upon entry into the U.S. Army the applicant reported his last name as "G____" and he enlisted using the last name "G____." 3. The applicant's military service records clearly show his last name as "G____" and that he signed numerous documents using that last name. In addition, the applicant's last name was consistently recorded in his official military service records, including on his DD Form 214, when he was discharged from military service on 10 December 1996. 4. The evidence of record shows the applicant's name was legally changed on 9 January 2013. 5. 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. 6. 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 legal 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. 7. The applicant is advised that a copy of this decisional document, which confirms his legal name change, 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 name recorded in his military record and his current legal name. 8. The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged. His conviction and discharge were effected in accordance with applicable law and regulations and his rights were protected throughout the court-martial process. 9. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 10. After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case. 11. The applicant's contentions regarding his post-service achievements and conduct were considered. However, his post-service conduct is insufficient as a basis for changing or upgrading his discharge. 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) AR20150003260 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003260 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1