ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 September 2019

	DOCKET NUMBER:  AR20180002242


APPLICANT REQUESTS:  

* upgrade of his under other than honorable conditions discharge to under honorable conditions (general)
* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his legal name change from Xx__ Xx__ Xxx__ to Xx__ Xxx__.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* State of Georgia County of Douglas – Order and Decree of Changing 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 he is requesting a change in his discharge status from under other than honorable conditions to under honorable conditions (general).  He is also requesting his name be changed from Xx__ Xx__ Xxx__  to Xx__ Xxx__ on his 
DD Form 214.  His name was legally changed dated 28 December 2007 by court order to Xx__ Xxx__ 

3.  The applicant provides the State of Georgia County of Douglas – Order and Decree of Changing Name, dated 28 December 2007.

4.  A review of the applicant’s service record shows the following:

	a.  He enlisted in the Regular Army on 2 February 1988 and assigned to Fort Ord, CA.
	b.  The applicant was notified by his immediate commander’s intent to separate him on 26 January 1989 under the provisions of Army Regulation (AR) 635-200, (Enlisted Personnel-Personnel Separations) chapter 14-12(b) (pattern of misconduct) and he acknowledged on same date for:

* he was absent without leave (AWOL) between 5 July 1988 and 26 July 1988
* he failed to -make a serious attempt to train
* he failed to bring his ID Card to the PT test
* he misused his telephone company credit card number
* he failed to clean his weapon properly over a five hour time period
* he failed to report for extra duty
* he was insubordinate to an non-commissioned officer (NCO) 
* he was derelict in the performance of his duties
* he was disrespectful in language to an non-commissioned officer (NCO)

	c.  On 26 January 1989, he was advised by his consulting counsel of the basis for the contemplated action to separate him for pattern of misconduct under the provisions of AR 635-200, chapter 14-12(b), its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He acknowledged:

* he had been afforded the opportunity to consult counsel
* that he was being consider for service characterization under other than honorable conditions 
* understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* understood that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life
* understand that I will be ineligible to apply for enlistment in the United State Army for a period of 2 years after discharge

	d.  The commander formally initiated separation under 
AR 635-200, chapter 14-12(b) on 27 January 1989 and the chain of command recommended approval.

	e.  On 6 February 1989, the separation authority approved separation under 
AR 635-200, chapter 14-12(b) with the issuance of an under other than honorable conditions discharge.

	f.  On 16 February 1989, the applicant was discharged from active duty.  His 
DD Form 214 shows he was discharged for pattern of misconduct under the provisions of AR 635-200, Chapter 14-12(b).  His DD Form 214 reflected his full name as "Xxx__, Xxx__ Xx__” in block 1 (Name, Last, First, Middle).  His character of service is under other honorable conditions.

	g.  On 27 June 2018, the U.S. Army Human Resources Command (HRC) determined they this are unable to grant his request for a change of name on his military service record/discharge document.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The information contained therein should reflect the conditions and circumstances that existed at the time the records were created and under which the military service was performed

5.  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, list other names of record in block 18 (Remarks)

6.  By regulation, members are subject to separation for commission in a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized.

7.  In reaching its determination, the Board can consider the applicants 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 relief was not warranted.  Based upon the short term of honorable service completed prior to a pattern of misconduct which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.

Additionally, because the DD Form 214 is used to capture information current at the time of separation and the name change of the applicant occurred many years after the publication date of the DD Form 214, the Board found no error or injustice which would warrant making a change to the name as depicted 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.
	 
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 635-8 (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, list other names of record in block 18 (Remarks)

3.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, 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 was 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.

	b.  Paragraph 3-7a states that 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.  Paragraph 3-7b states that 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.

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.

ABCMR Record of Proceedings (cont)	 AR20180002242


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