IN THE CASE OF: BOARD DATE: 13 January 2020 DOCKET NUMBER: AR20180006004 APPLICANT REQUESTS: amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect: * his characterization of service as honorable in lieu of uncharacterized his name as in lieu of APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 * District Court of Order, dated 18 May 2004 * District Court of Order, dated 7 October 2004 * driver’s license * Social Security card * Department of Veterans Affairs (VA) letter, dated 14 March 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: a. It has now been determined by the VA that his disability is service-connected and he has been awarded disability compensation. See his attached VA letter showing his service is honorable, not uncharacterized. b. Please also change his name to as he legally changed his last name and no longer has a middle name, as verified in provided court orders, Social Security card, and driver’s license. 3. The applicant enlisted in the Regular Army on 31 May 2001. His DD Form 4 (Enlistment/Reenlistment Document) lists his name as. 4. The complete facts and circumstances surrounding his discharge are not in his available records for review. 5. His DD Form 214 shows the following: * his name is listed as * he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability, existed prior to service – medical board on 18 July 2001 * his service was uncharacterized * he completed 1 month and 18 days of net active service this period 6. The applicant provided two court orders from the District Court of, which show he legally changed his name from to on 18 May 2004 and again legally changed his name from to on 7 October 2004, 3 years after his discharge from the Army. 7. His driver’s license and Social Security card both list his name as. 8. He provided a letter from the VA showing his active service dates were from 31 May 2001 through 18 July 2001 and that service was characterized as honorable. It also shows he received a service-connected disability rating of 10 percent effective 1 December 2017. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board determined that, because the applicant was discharged while he was in an entry-level status having served only 1 month and 18 days, his character of service was properly recorded as "uncharacterized" in accordance with the governing Army regulation. The VA's determination that his service was honorable was made under the VA's separate authority and does not retroactively affect the Army's proper designation of his service as uncharacterized under the governing Army regulation. 2. The applicant’s name change occurred after his period of military service. Without any extenuating factors other than a post-service name change, the Board agreed there is insufficient evidence to support a recommendation to change the name in his Army personnel records. The Board noted that these proceedings will be filed in his Official Military Personnel File, which will serve to mitigate any confusion with regard the name under which he served and the name he now uses. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command- referred for a fitness-for-duty medical examination. b. Chapter 5 provides guidance on non-service aggravated existed prior to service (EPTS) conditions when a Soldier requests waiver of referral to a PEB. The criteria for discharge per this chapter are as follows: * the Soldier is eligible for referral into the disability system * the Soldier does not meet medical retention standards as determined by the MEB * the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty * the Soldier is mentally competent * knowledge of information about his/her medical condition would not be harmful to the Soldier’s well-being * further hospitalization or institutional care is not required * after being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action * the Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for VA benefits 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-1 states unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in an entry-level status. b. Paragraph 5-11 states Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty or active duty for training for initial entry training may be separated. Such conditions must be discovered during the first 6 months of active duty. For character of service, paragraph 5-1 should be adhered to. c. Section II (Terms) of the Glossary defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. 4. 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. The regulation states the DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty, and it provides a brief, clearcut record of active duty service at the time of release from active duty, retirement, or discharge. The regulation further 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. 5. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180006004 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1