IN THE CASE OF: BOARD DATE: 4 March 2019 DOCKET NUMBER: AR20160009290 BOARD VOTE: 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration 1. IN THE CASE OF: BOARD DATE: 4 March 2019 DOCKET NUMBER: AR20160009290 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his characterization of service from under honorable conditions (general) to honorable and correction of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending on 19 October 1963 and 18 July 1968 to reflect his last name as _______ versus ________. 2. The applicant states his discharge was inequitable because it was based on one isolated incident. He couldn’t prove his personal checks were stolen. He paid for the first couple and confronted the person who took them; however, at his court-martial he was told that it was his responsibility to secure his checks. Additionally, at the time of his enlistment, he believed his last name was _______ and after his military y service he requested a copy of his birth certificate and found that his last name was _____. He did not realize he could request to change his name. He received a letter from the National Personnel Records Center (NPRC) which shows his last name as ________. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * Certificate of Birth, dated 24 April 2015 * DD Form 214, for the period ending 18 July 1968 * Two letters from the NPRC 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * ABCMR Docket Number AR2002075669, dated 27 January 2003 * DD Form 214, for the period ending 19 October 1963 * DD Form 4 (Enlistment Record – Armed Forces of the United States), 15 March 1965 Enclosure 2 * DA Form 428 (Application for Identification Card), dated 19 March 1965 * DD Form 458 (Charge Sheet), dated 10 August 1965 * DA Form 2627 (Summarized Record of Proceedings Under Article 15, [Uniform Code of Military Justice] UCMJ), imposed on 6 June 1967 * Three DA Forms 2627-1 (Record of Proceedings Under Article 15, UCMJ) * Special Court-Martial Order Number 2, dated 28 May 1968 * Special Court-Martial Order Number 47, dated 19 June 1968 * DA Form 20 (Enlisted Qualification Record) REFERENCES: 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. 2. Army Regulation 635-5 (Separation Documents), prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear- cut record of active Army service at the time of release from active duty, retirement, or discharge. 3. Army Regulation 635-200, prescribed policies and procedures for administrative separations of enlisted personnel. It stated: a. Individuals who have enlisted will be discharged or released from active duty (expiration term of service (ETS)) on the date upon which he or she completes the period for which enlisted. b. An honorable discharge is a separation with honor. Issuance of an honorable discharge is conditioned upon proper military behavior and proficient performance of duty during the current enlistment. Where there are infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15, UCMJ. It is the pattern of misconduct and not the isolated instance which should be considered. a. 4. Article 58a, UCMJ, states, where an approved court-martial sentence of an enlisted Soldier includes confinement, that Soldier will be reduced to PVT/E-1 effective the date of the convening authority's approval. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR 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. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. DISCUSSION: 1. While 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. 1. 2. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2002075669 on 16 January 2003. 3. The evidence shows the applicant was initially inducted into the Army of the United States on 26 October 1961, his last name is listed as _______ and this is the name shown on his DD Form 214. He was released from active duty on 19 October 1963 with an honorable characterization of service. He served 3 years, 3 months, and 27 days. 4. On 15 March 1965, he enlisted in the Regular Army for a period of 3 years. His ETS was projected to be on 14 March 1968. 5. On 10 August 1965, the applicant was charged, plead guilty and was found guilty of being absent without proper authority on or about 27 July 1965 to on or about 3 August 1965. 6. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ on four occasions from 6 June 1967 to 26 February 1968. Three times for failure to go at the time prescribed to his appointed place of duty; and one time for being absent without leave (AWOL), for approximately 15 hours. 7. Special Court-Martial Order (SPCMO) Number 2, dated 28 May 1968, shows on 11 March 1968, he was arraigned and tried. He pled guilty and was found guilty of wrongfully and unlawfully writing checks for the payment of money on nine separate occasions. He was sentenced to confinement at hard labor for a period of two months, to forfeit $900 per/month for two months and reduced to the lowest enlisted grade. 8. SPCMO Number 47 dated 19 June 1968, states the findings of guilty and the sentence in special court-martial adjudged on 28 May 1968 are set aside. All rights, privileges, and property of which the accused has been deprived by virtue of the findings of guilty and the sentence so set aside with be restored. 9. On 18 July 1968, the applicant was discharged upon his ETS. His service was characterized as under honorable conditions. He completed 3 years, 3 months and 27 days with 7 days lost time. His DD Form 214 shows his last name as _______. 10. His record shows he was tried and arraigned approximately 3 days prior to reaching his ETS but doesn’t show what occurred that resulted in his sentence being set aside 22 days after it was adjudged. Additionally, his name was listed 1. as _______ throughout both periods of service. The applicant states he found out his last name was _______ after his military service. 11. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. //NOTHING FOLLOWS// ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 March 2019 DOCKET NUMBER: AR20160009290 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR2002075669, dated 16 January 2003. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 18 July 1968 showing his characterization of service as honorable. 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 amending the last name listed on his separation documents. The applicant is advised that a copy of this decisional document will be filed in his official military personnel file. This should serve to clarify any questions or confusion about the difference in the name recorded in his military records. 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. Enclosure 1