ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20170002042 APPLICANT REQUESTS: * correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to reflect his first, middle, and last name as X___ versus X___ update his records to reflect his current legal name * an upgrade of his general discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * State of Connecticut Court Decree, Change of Name 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, in effect: a. His DD Form 214 should be corrected to reflect his first, middle, and last name as X___. b. The series of events that led to his discharge left him overwhelmed and dispirited. He endured abuse and public humiliation by his company commander. Although the battalion commander offered to vacate the charges and transfer him to a different company, he accepted the discharge just to put an end to it. c. At the time of his misconduct, he was 19 and did not completely understand how his discharge would impact the rest of his life. Had he known or remained in West Germany, he would never have agreed to the discharge and accepted the battalion commander's offer to transfer. d. He has carried the negative burden of decisions he made as a youth without any legal counsel, which may have made all of the difference in the world. e. He asks the Board to consider whether 32 years of having had the negative reflection on his character is sufficient punishment for what he was discharged for. 3. The applicant provides a court decree for a change of name from the State of Connecticut Court of Probate, which reflects an order and decree that the applicant's name be changed from X___ to X___. 4. A review of the applicant's service record shows: a. He entered the regular Army on 3 May 1983. b. He accepted nonjudicial punishment (NJP) on 17 June 1985 for being drunk and disorderly on 30 May 1985. He was reduced to private first class/E-3. c. He accepted NJP on 21 June 1985 for disobeying a lawful order given by a noncommissioned officer on 6 June 1985. He was reduced to private/E-2. d. On 5 June 1985 (sic), the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, misconduct (commission of a serious offense). e. The applicant acknowledged receipt of the commander's intent to separate him on 9 July 1985. He consulted with legal counsel on 10 December 1999. He was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected not to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded f. On 6 August 1985, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 14-12c, commission of serious offense, with his service characterized as general under honorable conditions. g. His DD Form 214 reflects he was discharged for misconduct (commission of a serious offense), Separation Code JKQ, under the provisions of AR 635-200, paragraph 14-12c, with his service characterized as general under honorable conditions. He was discharged on 19 August 1985. He completed 2 years, 3 months, and 17 days of active service. 5. The first, middle, and last name of X___ were recorded as the applicant's name of record upon his initial enlistment on 3 May 1983. He represented his name as X___. throughout the entire period of his military service; it is consistently represented in the documents contained in his Military Personnel Records Jacket, including his DD Form 214. He authenticated many documents by placing his full signature in the appropriate block attesting to the correctness of the represented his name. The requested name does not appear in his available military records. a. The applicant submitted a copy of a court decree for a change of name from the State of Connecticut Court of Probate; however, he did not claim the requested first and middle name during his entire period of military service. b. 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. 6. AR 635-200 states, action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 7. 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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the misconduct within record and a lack of character evidence submitted by the applicant showing he has learned and grown from the events leading to discharge, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 2. The applicant’s name change occurred after the period of service covered by the DD Form 214. The Board agreed regulatory guidance provides for the maintaining of military records as they were during the members period of service. There were no extenuating circumstances involved such as gender transition or placement in the witness protection program. 3. 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 and the name on his birth certificate. 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. 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 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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. c. Chapter 14, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 3. Army Regulation 635-5 (Separation Documents), then in effect, 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002042 5 1