ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  15 July 2019

	DOCKET NUMBER:  AR20180000531


APPLICANT REQUESTS:  

*	Correction of his last name to show his legal name changed from S__ to M__
*	An upgrade of his general under honorable conditions discharge

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 at the time of enlistment he believed his last name to be S__ 
which was not the case.  His mother remarried when he was 5 years old.  He started 
using the name S__ at that time (1962).  In 1979 when he applied for a marriage license 
he discovered he had not been legally adopted and was advised by the court clerk that 
he could apply for a marriage license using the name on his birth certificate.  He started 
using the name M___ at that time.  This can be verified through the social security office 
both names are the same social security number.  He was advised by Captain E__ at 
the 1st Battalion, 14th Field Artillery, 2nd Armored Division that discharge under the 
Expeditious Discharge Program would become eligible for upgrade after 1 year.  He is a 
sixty year old veteran incarcerated at V__ State Prison that has applied for benefits but 
he is not receiving mail from the Department of Veterans Affairs due to last name.

3.  A review of the applicant’s service records shows:

a.	He enlisted in the U.S. Army Reserve on 2 August 1974, under the delayed entry 
program for a period of 6 years.  During enlistment he provided an applicant’s statement 
of name change, dated 31 July 1974 which states that his name had not changed 
through any court procedure and that he preferred to use the name K__ R__ S__ as a 
matter of convenience.
b.	He enlisted in the Regular Army on 6 August 1974, for a period of 3 years.

c.	He served in Germany from 4 April 1975 to 18 September 1975.

d.	He accepted nonjudicial punishment (NJP) under Article 15 for infractions on/for: 

*	8 May 1975, failing to obey a lawful order that the golf course was off limits 
(reduction to grade private/E-1, forfeiture of $80.00 pay for one month)
*	30 June 1975, wrongfully had possession of illegal paraphernalia a pie 
containing residue of marihuana
*	12 January 1976, being absent without leave from 28 December 1975 to 
3 January 1976
e.	On 10 February 1976, the applicant’s immediate commander notified him, of his 
intent to discharge him under the provisions of chapter 5, Army Regulation 635-200 
(Personnel Separations –Enlisted Personnel) for poor attitude, lack of motivation, lack of 
self-discipline, failure to demonstrate promotion potential and hostility toward the Army.

f.	On 10 February 1976, he acknowledged receipt and consented to the proposed 
separation.  He did not submit a statement on his behalf.  He consulted legal counsel 
and was advised of the basis for his contemplated separation and its effects, the rights 
available to him and the effect of a waiver or his rights.  

	g.  On 10 February 1976, his commander recommended approval of the separation 
action for expeditious discharge and that applicant be furnished with a General 
Discharge Certificate.

	h.  On 10 February 1976, consistent with the chain of command recommendation, 
the separation authority approved the applicant's discharge under the provisions of 
chapter 5, paragraph 5-37, Army Regulation 635-200 (Personnel Separations – Enlisted 
Personnel).  He furnished a General Discharge Certificate.

	i.  On 22 March 1976, he was discharged with a general, under honorable conditions 
characterization of service.  His DD Form 214 (Report of Separation from Active Duty) 
shows he completed 1 year, 7 months, and 11 days of active service with 6 days lost 
from 28 December 1975 thru 2 January 1976.  It also shows his name as K__ R__ S__, 
He was awarded or authorized the National Defense Service Medal and Marksman 
Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  By regulation, personnel whose performance of duty, acceptability for the service, 
and potential for continued effective service fall below the standards required for 
enlisted personnel in the U.S. Army may be discharged.

5.  By regulation (AR 635-5), 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.

6.  By regulation (AR 635-8), currently in effect, the DD Form 214 is a summary of the 
Soldier’s most recent period of continuous active duty.  For block 1, compare with the 
original enlistment contract or appointment order and review the official record for 
possible name changes.  If a name change has occurred during the period covered by 
the DD Form 214, list other names of record in block 18 (Remarks).

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, the Board determined relief is not 
warranted.  The applicant’s contentions were carefully considered.  The Board applied 
Department of Defense standards of liberal consideration to the complete evidentiary 
record and did not find any evidence of error, injustice, or inequity.  He did not provide 
character witness statements or evidence of post-service achievements for the Board to 
consider.  He completed a short term of honorable service prior to a pattern of 
misconduct, which included offenses of a criminal nature and was provided an under 
honorable conditions (General) characterization of service.  The Board agreed that the 
applicant's discharge characterization is warranted as he did not meet the standards of 
acceptable conduct and performance of duty for Army personnel.

The applicant used the contested name during his entire period of service.  Therefore, 
the Board determined the overall merits of this request are insufficient as a basis for 
correction of the records of the individual concerned.

The Army has an interest in maintaining the integrity of its records for historical 
purposes.  The information in those records must reflect the conditions and 
circumstances that existed at the time the records were created.  In the absence of 
evidence that shows a material error or injustice, there is a reluctance to recommend 
that those records be changed. 

The applicant is advised that a copy of this decisional document, along with his 
application and the supporting evidence he provided, will be filed in his official military 
records.  This should serve to clarify any questions or confusion regarding the 
difference in the name recorded in his military records and to satisfy his desire to have 
his birth name documented in his military records.


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), in effect at 
the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states 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 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 5-37 (Discharge for Failure to Demonstrate Promotion Potential) of the 
regulation states that personnel whose performance of duty, acceptability for the 
service, and potential for continued effective service fall below the standards required 
for enlisted personnel in the U.S. Army may be discharged.  Discharge under the 
provisions of this paragraph is limited to:

*	personnel who fail to be advanced to the grade of E-2 after 4 months of active 
duty
*	personnel who fail to demonstrate potential to justify advancement to the 
grade of E-3 after attaining the normal time-in-service and time-in-grade 
criterion for promotion to grade E-3, without waiver

3.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the 
separation documents that must be prepared for Soldiers upon retirement, discharge, 
or release from active duty service or control of the Active Army.  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.  The specific instructions for item 1 (Last Name – First Name – Middle 
Name) stated to enter the last name, first name, and full middle name or names, if any.

4.  Army Regulation 635-8 (Separation Processing and Documents), currently in effect, 
prescribes the transition processing function of the military personnel system, including 
preparation of the DD Form 214.  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.  For block 1, compare with the original enlistment 
contract or appointment order and review the official record for possible name changes.  
If a name change has occurred during the period covered by the DD Form 214, list 
other names of record in block 18 (Remarks).

5.  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. Army Regulation (AR) 635-200, in effect 
at the time, sets forth the basic authority for the separation of enlisted personnel.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180000531

2

1