ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20170019077 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions discharge * Correction of his last name (his middle and last names are transposed) * Correction of his date of birth to show 29 M 1961 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement * Social Security Card * State of Texas Driver’s License * State of New Mexico Certificate of Live Birth 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 that he has tried to get his discharge changed from an under other than honorable conditions discharge since 1982 and has had no success with getting his records updated. He also requests his records to reflect his correct last name and date of birth. 3. The applicant provides: * Certificate of Live Birth, issued 12 April 1961 shows his date of birth as XX X___ 1961, middle name as X___, and last name as X___ * State of Texas Driver’s License , issued 8 January 2014 shows his date of birth as XX M 1961, middle name as Lin , and last name as X___ * Social Security card, issued 6 May 2007 shows his middle initial as X and last name as X___ * 4. A review of the applicant’s service records shows: a. He enlisted into the Regular Army on 30 March 1979. His DD Form 4 (Enlistment/Reenlistment Document- Armed Forces of the United States), dated 5 December 1978, block 1 shows his middle name as Br and last name as X___. His date of birth shows as XX X___ 1961. He signed his enlistment contract on 30 March 1979 using the middle name X___ and last name as X___. b. His DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) indicates he disobeyed a lawful order. His superior noncommissioned officer, told him to remain in the company area on 19 May 1979 and he failed to do so. He received forfeiture of pay of $97 and 7 days at the Fort Leavenworth Correctional Custody Facility. c. He served in Germany from 22 July 1979 to 3 December 1980. He was assigned to the 547th Engineer battalion, and later the 94th Engineer Battalion. d. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his service record contains: (1) Orders 282-3, issued by U.S. Army Regional Personnel Center, Darmstadt, Germany, on 24 November 1980. The orders listed his last name as X___ and his middle initial B. The orders ordered him to report to the U.S. Army Separation Transfer Point for separation processing, under Army Regulation (AR) 635-200 (Personnel separations), effective 4 December 1980. (2) DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged from active duty on 4 December 1980. He was discharged under the provisions of AR 635-200, chapter 10. He completed 1 year, 8 months, and 5 days of active service. His DD Form 214 further shows: * Item 1 (Last Name, First Name, Middle Name) the spelling of his middle name as X___ and last name as X___ * Item 5 (Date of Birth) – 61/xx/XX (or XX X___ 1961) * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized, he was awarded or authorized Marksmanship Qualification Badge with Rifle Bar (M-16) and Sharpshooter Qualification Badge with Hand Grenade Bar 5. A review of his official military personnel file revealed all documents showing his middle name as X___ and last name as X___ throughout his military service. 6. By regulation: a. Discharges under the provisions of chapter 10 of AR 635-200 provides that a member who has committed an offense or offenses, the punishment for any of which a. includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The issuance of a discharge under the provisions of chapter 10, AR 635-200, would have required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of a trial by court-martial. b. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the available documentary evidence and a lack of character evidence to show that applicant has learned and grown from the events leading to discharge, the Board recommended denying the portion of the request related to upgrading the characterization of service. Additionally, the Board concluded there was no error or injustice in the record related to changing the name or the date of birth of the applicant on his DD Form 214. Based upon the election by the applicant at the time of enlistment on his DD Form 1966, item 23, where he elects to show his name throughout his military career as the name appearing on his DD Form 214, the Board recommended denying changing the name change on the DD 214. Finally, the Board found that the date of birth requested by the applicant is already depicted on his DD Form 214. The date is written in a different format, but depicts the same date. For that reason, the Board recommended denying the entire application of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATIO BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. 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 in regard to the difference in his name recorded in his military record and the name currently being used by the applicant. 5/21/2019 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable discharge) states that an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General discharge) states that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member’s overall record during the current enlistment. 3. Army Regulation (AR) 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It established standardized policy for preparing and distributing the DD Form 214. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. 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 1. 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.