ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20160018143 APPLICANT REQUESTS: * an upgrade of his characterization of service from under honorable conditions to honorable * to have his first name changed from X____ to X____ APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, he has been a model citizen since he was discharged. He is having trouble getting certain Veterans Affairs (VA) benefits due to the status of his DD Form 214 (Certificate of Release or Discharge from Active Duty). He would like an upgrade so that he may receive benefits. He also request a name change since he has been adopted. 3. A review of the applicant’s service record shows: a. He enlisted on 26 December 1989, into the Regular Army (RA), as X____ X. X____. He served in Panama from 7 May 1990 to 12 September 1991. b. On 13 February 1992, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specifications of falsifying official documents. His punishment consisted, in part, of reduction to E-2. c. On 6 March 1992, the applicant accepted NJP under the provisions of Article 15 for one specification of absenting himself from his appointed place of duty. His punishment consisted, in part, of reduction to E-1. a. d. He received a mental status evaluation on 21 July 1992, which identified that he was mentally responsible, had the mental capacity to understand and participate in the proceedings, and he met medical retention requirements. e. On 8 August 1992, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200, chapter 14 (Separation for Misconduct), paragraph 14-12b (Patterns of Misconduct), based on two company grade Article 15's: one for forgery and one for failure to repair. The immediate commander recommended a under honorable conditions discharge. f. The applicant acknowledged receipt of the letter of notification of the commander’s intent to separate him under the provisions of AR 635-200, chapter 14-12b. A record of the applicant’s legal consultation is not available for the Board to review. g. Subsequent to the applicant's acknowledgement, on 8 August 1992, the immediate commander formally initiated separation action against the applicant under the provisions of chapter 14 of AR 635-200, separation for misconduct, patterns of misconduct. h. On 13 August 1992, the chain of command reviewed the separation recommendation and subsequently recommended approval of the separation with a characterization of service as under honorable conditions. He requested that the counseling and rehabilitative requirements be waived. i. On 14 August 1992, following a legal review for legal sufficiency, the separation authority approved the request for discharge for patterns of misconduct and ordered his service be characterized as under honorable conditions. He also approved the waiver of the counseling and rehabilitative requirements. j. The applicant was discharged on 24 August 1992. His DD Form 214 shows he was discharged from active duty under the provisions of AR 635-200, Chapter 14-12b with a general under honorable conditions characterization of service. His DD Form 214 shows: * his first name listed as X____ * he completed 2 years, 7 months, and 29 days of active duty service * he was awarded or authorized Army Service Ribbon, National Defense Service Medal, Marksman Marksmanship Badge with Rifle Bar (M16), and Parachutist Badge 4. On 19 April 2019, Army Review Boards Agency (ARBA), requested sufficient evidence to support the applicant’s request in changing his name. The applicant did not respond. By regulation, the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. The information entered thereon reflects the 1. conditions as they existed at the time of separation. His DD Form 214 reflects that he was discharge under the same name that he enlisted under. 5. By regulation, chapter 14 of AR 635-200 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. Based upon the pattern of misconduct, as well as an insufficient amount of character evidence to show that applicant has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. By regulation, the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty and reflects information as they existed at the time of separation. After reviewing the documentary evidence within the applicant’s military service record, the Board concluded the applicant’s DD Form 214 reflects the same name that he enlisted under and all names used within the record. For that reason, the Board found no error or injustice which would warrant making a change to the name on the applicant’s DD Form 214. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 6/4/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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) in effect at the time 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 the preparation of the DD Form 214. It stated the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. The information entered thereon reflects the conditions as they existed at the time of separation. His DD Form 214 reflects that he was discharge under the same name that he enlisted under. 3. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. b. 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. 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. a. 4. 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 based on 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.