BOARD DATE: 16 April 2019 DOCKET NUMBER: AR20180000592 APPLICANT REQUESTS: Correction of his DD Form 214 (Armed forces of the United States Report of Transfer or Discharge), for the period ending 7 December 1972, to show a. His name (Last Name, First Name, Middle Initial) as xxxxxxx, xxxx instead of xxxxxx, xxxxx .; and b. His undesirable discharge upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 19 December 2017 * Insurance Policy Specifications, dated 14 December 1973 * Mother's Obituary * Judgment Order for Change of Name, dated 7 June 2011 * State of Certification of Birth issued on September * Social Security Card * Poll Identification Card issued on 13 June 2014 * National Personnel Records Center Letter, dated 10 November 2015 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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, his birth name is shown on his State of XXXXXX Certification of Birth. Before and during the time he served, he used the name currently reflected on his DD Form 214, which was his adopted name. After his discharge, he had his name legally changed to the name shown on the Judgment Order for Change of Name. 3. The applicant enlisted in the Regular Army on xxxxxx, using the name currently shown on his DD Form 4 (Enlistment Contract – Armed Forces of the United States) and DD Form 214. The same name is shown on every document contained in his Official Military Personnel File (OMPF). 4. Summary Court-Martial Order Number 67, issued by Headquarters, Fourth Combat Support Training Brigade, Fort Ord, CA on 10 March 1970, shows the applicant was convicted on 11 February 1970 of being absent without leave (AWOL) from on or about 12 June 1970 until on or about 26 June 1970. He was sentenced to reduction to pay grade E-1, confinement at hard labor for fifteen days, and a forfeiture of $60.00 pay. 5. The applicant accepted nonjudicial punishment (NJP) on 24 June 1970, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent from his place of duty, on or about 24 June 1970. 6. Special Court-Martial Order Number 436, issued by Headquarters, Special Troops, U.S. Army Training Center, Engineer and Fort Leonard Wood, Fort Leonard Wood, MO on 28 July 1970, shows the applicant was convicted on 15 July 1970 of falsely altering a certain pay voucher, with intent to defraud, by adding the number "1" before $11.96 and $11.00 to reflect $111.96 and $111.00. He was sentenced to confinement at hard labor for three months. 7. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following dates for the indicated offenses: a. On 27 April 1971, for being AWOL from on or about 10 February 1971 until on or about 29 March 1971. b. On 5 May 1971, for being AWOL from on or about 2 May 1971 until on or about 4 May 1971. c. On 3 August 1971, for being AWOL from on or about 27 July 1971 until on or about 3 August 1971. 8. Court-martial charges were preferred against the applicant on 21 November 1972, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 1 February 1972 until on or about 16 November 1972. 9. The applicant consulted with legal counsel on 24 November 1972. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. His request shows he made an election to submit a statement, wherein he noted he believed he should be discharged because he had family problems that had not been "solved" since the beginning of the year. His son could not have the things he needed and wanted and he and his wife were having conflicts as she was on the verge of filing for divorce. He liked the Army but his wife and baby came first. While he was AWOL, he was doing "good" until he got picked up. He still had a long way to go before he could get on his feet and he could not get on his feet while he was in the service. 10. The separation authority approved his request for discharge on 1 December 1972 and directed the applicant's reduction to the lowest enlisted grade and the issuance of an undesirable discharge. 11. The applicant was discharged on 7 December 1972, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. His DD Form 214 confirms he received an Undesirable Discharge Certificate. 12. Army Regulation 635-200 provided the authority for the separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable, General, and Undesirable Discharge Certificates. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. The applicant used the contested name during his entire period of service. 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 about the difference in the name recorded in his military records and the name on his birth certificate. 3. 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. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes the standardized policy for preparing and distributing the DD Form 214. It states the DD Form 214 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, then in effect, provided the criteria governing the issuance of Honorable, General, and Undesirable Discharge Certificates. a. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could have been submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an undesirable discharge was normally furnished to an individual who was discharged for the good of the service. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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) AR20180000592 4 ABCMR Record of Proceedings (cont) AR20180000592 1