ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190003958 APPLICANT REQUESTS: * an upgrade of his general discharge to honorable * in effect, to change his first name from XXXXX to XXXXX on his DD Form 214 (Certificate of Release or Discharge from Active Duty) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * State of Indiana Certificate of Birth * Florida Driver License * Social Security Card 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 would like for his birth name to be put on his DD Form 214 and all military records. He also requests an upgrade of his discharge to honorable. 3. In connection with his application for enlistment into the Armed Forces of the United States, the applicant provided a social security card showing the name XXXXX X . He also provided a LaPorte County, Indiana birth certificate showing the name XXXXX X . 4. His record contains a DD Form 1966 (Application for Enlistment – Armed Forces of the United States) that shows his name in block 2 listed as XXXXX X ; nevertheless, Section X – Statement of Name for Official Military Records states in item 48, if the preferred enlistment name (name given in block 2) is not the same as on your birth certificate and it has not been changed by legal procedure prescribed by state law, complete the following: a. Enter name as shown on your Birth Certificate. The applicant entered the name XXXX X . b. “I hereby state that I have not changed my name through any court or other legal procedure, that I prefer to us the name of XXXXX X by which I am known in the community as a matter of convenience and with no criminal intent. I further state that I am the same person as the person whose name is shown in block 2.” c. “My social security account number reflects the name: XXXXX X .” 5. On 2 October 1984, the applicant enlisted in the Regular Army for a period of 3 years. He name was listed as XXXXX X . 6. He received non-judicial punishment under the provisions of Article 15 of the Uniformed Code of Military Justice on: * 10 May 1985, for insubordinate conduct towards a noncommissioned officer (NCO) * 22 May 1985, for breaking restriction * 31 December 1985, for disrespecting a superior commissioned officer and disobeying a lawful command * 4 August 1986, for disrespecting a superior NCO * 18 August 1986, for failing to be at his appointed place of duty and disobeying a lawful order 7. On 19 August 1986, a Bar to Reenlistment was approved and imposed against the applicant based on his record of non-judicial punishment (NJP). He was also psychiatrically cleared for administrative separation. 8. In August 1986, his commander recommended his separation for unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separation – Enlisted Personnel). His commander's reasons for the proposed action were the applicant's receipt of NJP on multiple occasions, a bar to reenlistment imposed against the applicant, and the applicant’s failure to respond to counseling. The commander advised him of his rights. 9. The applicant acknowledged he had been advised of the basis for the contemplated separation action. He waived representation by counsel and did not submit a statement in his own behalf. He acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. 10. The separation authority approved the applicant's discharge for unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200 and directed he be issued a General Discharge Certificate. 11. On 19 September 1986, the applicant was discharged accordingly. He completed 1 year, 11 months, and 18 days of net active service. He was not awarded a personal decoration. 12. In support of his case, the applicant provided a birth certificate, driver’s license, and a social security card that shows his name listed as XXXXX X . 13. For historical purposes, the Army has an interest in maintaining the integrity of its records. The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created, absent a material error or injustice. 14. Army Regulation 635-5 (Separations Documents), in effect at the time of the applicant’s active duty service, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. It stated the DD Form214 is a synopsis of the Soldier’s most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 15. Army Regulation 635-200, chapter 13 contains policy and outlines procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. The regulation also provides that an honorable discharge is a separation with honor. 16. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, the frequency and nature of his misconduct, the Bar to Reenlistment and whether to apply clemency. The Board found no in-service mitigating factors and the applicant provided no post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of mitigating factors to overcome the misconduct and determined that the character of service the applicant received at discharge was not in error or unjust. Regarding the applicant’s request to change his name on his service records, the Board found that while it is understandable that the applicant now desires to record a different first name in his military records, he elected at the time of enlistment to use the first name “XXXXX”; there is no evidence of error or injustice. 2. The Board advises the applicant that a copy of this decision will be placed in his official records to clarify the difference between the first name under which he served and the first name on his birth certificate that he uses now. 3. After reviewing the application and all supporting documents, the Board found relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :ATD :DRA :RAS 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. 8/5/2019 X CHAIRPERSON 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 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 635-5 (Separations Documents), in effect at the time of the applicant’s active duty service, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. It stated the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active service. It 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 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 contains policy and outlines procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. b. The regulation provides 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. 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. 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, 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. 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.