ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 August 2019

	DOCKET NUMBER:  AR20180010992


APPLICANT REQUESTS:  

* an upgrade of his general, under honorable conditions discharge to honorable
* change date of entry from 18 January 1990 to 22 September 1988 and discharge from 12 September 1991 to 9 December 1991
* listing of all job titles and training 81Q (Terrain Analyst)  and 12C (Bridge Crewman)
* correct his name and date of birth (DOB)
* personal appearance before the Board

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 his name and date of birth are incorrect, and his discharge should have been honorable.  His active dates should begin on 22 September 1988 and end on 12 September 1991 and his job titles and training are 81Q and 12C.  His record was reconstructed to release him early from active duty.  The general discharge messed up his active service time line, his DD Form 214 (Certificate of Release or Discharge from Active Duty) needs to show consistent time.

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

	a.  His DD Form 4 (Enlistment/Reenlistment Document) shows he enlisted in the U.S. Army Reserve (USAR) on 26 September 1988 for 8 years.  His contract listed his name as X___, X____ (without the letter n at the end of the first name) and his DOB as XX M__ 197X.  He signed his contract using the name X___, X___.

	b.  He entered active duty for training (ADT) on 7 February 1989.  He completed training and was awarded military occupational specialty (MOS) 81Q (Terrain Analyst). 

	c.  He was honorably released from ADT on 2 August 1989.  His DD Form 214 for this period of service credited him with 5 months and 26 days of active service.  It shows in:

* Block 1 (Name - Last, First, Middle) his name listed as X___, X___  X. (similar to the name shown on his enlistment contract; i.e., without the letter n at the end of the first name)
* Block 5 (DOB) his DOB listed as XX X__ 197X (similar to the DOB shown on his enlistment contract)
* Block 11 (Primary Specialty Number, Title and Years) 81Q, Terrain Analyst

	d.  He was discharged from the USAR on 2 August 1989.  

	e.  He enlisted in the Regular Army on 18 January 1990.  His enlistment contract for this period listed his name as X___, X___  (without the letter n at the end of the first name) and his DOB as XX X__ 197X.  He signed his contract using the name X___, X___.

	f.  He completed MOS training on 21 February 1990, he was awarded primary MOS 12C (Bridge Crewman).  On 10 April 1990, he was assigned to 502nd Engineer Company, Germany until his discharge date on 12 September 1991.  

	g.  The complete facts and circumstances surrounding his discharge are not available for the Board to review.  However, his service record contains: 

		(1)  The separation authority approval memorandum.  It shows on 19 August 1991, the separation authority approved the request for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 14-12b, for pattern of misconduct.  He directed the applicant be issued a General Discharge Certificate.

		(2)  DD Form 214 that shows he was discharged from active duty on 12 September 1991 under the provisions of Army Regulation (AR) 635-200, chapter   14-12b for misconduct, pattern of misconduct, Separation Program Designator (SPD) Code JKM, with an under honorable conditions (general) characterization of service.  He completed 1 year, 7 months, and 25 days of active service and he was credited with 5 months and 26 days of prior active service. .  His DD Form 214 for this period of service shows in:

* Block 1, his name listed as X___, X___ X. (without the letter n at the end of the first name) 
* Block 5, his DOB is listed as XX X__ 197X (similar to the DOB shown on his January 1990 enlistment contract)
* Block 11, MOS 12C (Bridge Crewman) and MOS 81Q (Terrain Analyst), held for 1 year and 6 months
* Block 12a (Date Entered Active Duty This Period) 18 January 1990
* Block 12b (Separation Date This Period), 12 September 1991
* Block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized), the Army Service Ribbon, National Defense Service Medal, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification with Rifle Bar, M-16

   h.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

4.  As for the character of service, by regulation (AR 635-200)

	a.  Chapter 14-12b states that a pattern of misconduct consisting of discreditable involvement with civil or military authorities.  Conduct prejudicial of good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time honored customs and traditions of the Army.  

	b.  Chapter 3 states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  Paragraph 14-3 states that an under other than honorable conditions certificate is normally appropriate for a member discharged under this chapter.

5.  As for the name, DOB, entry/separation dates, and MOS, by regulation (AR 635-5), the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  Table 2-1. DD Form 214 Preparation Instructions:  

* Item 1:  enter name in all capital letters, include "Jr.," "Sr.," or "II," if appropriate
* Item 5:  enter the date of birth, enter six-digit number; year, month, and day without spaces or slashes
* Item 11 enter the MOS codes, titles, years, and months for enlisted personnel
* Item 12a.  enter beginning date of the enlistment period
* Item 12b.  enter separation date this period

6.  By regulation 635-5-1 (Personnel Separations-Separation Program Designators), members are subject to, separation code JKM is appropriate when the narrative reason for discharge is separation for misconduct – pattern of misconduct.  

7.  By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

8.  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 that it could reach a fair and equitable decision in the case without a personal appearance by the applicant.

Based upon prior information within the service record showing the date of birth of the applicant has requested, as well as the enclosed birth certificate of the applicant, the Board recommended changing the applicant’s date of birth depicted on his DD Form 214, dated 12 September 1991.

Based upon the information provided by the applicant showing both the requested name change and the name as depicted on the DD Form 214, the Board concluded that changing the name of the applicant on the DD Form 214 had merit and recommended making the change as requested.

However, based upon the enclosed Order 191-11 showing the the applicant having a report date to basic training of 7 February 1989, the Board concluded that the entry date reflected on the applicant’s DD Form 214, dated 2 August 1989 was correct and did not require a change.

Finally, based upon the limited amount of documentary evidence available related to the applicant’s discharge, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service.





BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the following information on the applicant’s DD Form 214, dated 12 September 1991, to reflect the information as depicted on the applicant’s enclosed birth certificate:
* (Item 1) Name:  
* (Item 5) Date of birth:  
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to all other requested relief.
	 
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 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  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.

	b.  Chapter 14 -12b states Soldiers are subject to separation when a pattern of misconduct consisting of discreditable involvement with civil or military authorities, conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.

3.  Army Regulation 635-5 (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 standardized policy for the preparation of the DD Form 214 and DD Form 215.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  Table 2-1. DD Form 214 Preparation Instructions:  

* Item 1:  enter name in all capital letters, include "Jr.," "Sr.," or "II," if appropriate
* Item 5:  enter the date of birth, enter six-digit number; year, month, and day without spaces or slashes
* Item 11 Enter the MOS codes, titles, years, and months for warrant officers and enlisted personnel
* Item 12a.  enter beginning date of the enlistment period 
* Item 12b.  enter separation date this period

4.  Army Regulation (AR) 15-185 (ABCMR) 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, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires

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.

ABCMR Record of Proceedings (cont)	 AR20180010992


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