AIN THE CASE OF BOARD DATE: 14 February 2022 DOCKET NUMBER: AR20210013725 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20150017619 on 4 October 2016. Specifically, he requests correction of his DD Form 214 (Report of Separation from Active Duty) to show his last name as instead of and, in effect, to show his service was characterized as honorable. 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), dated 21 April 2021 * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 21 April 2021 * birth certificate, marriage license, and school transcript * DD Form 214, for the period ending 12 August 1977 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150017619 on 4 October 2016. 2. The applicant states, in effect, that his identity was stolen by the Army and he has had to live under a false name since his discharge. He believes the documentation provided shows that his name is and was. 3. Title 10, U.S. Code (USC), Section 1552a (3)(D) provides that any request for reconsideration of a determination of a Board under this Section, no matter when filed, shall be reconsidered by a Board under this Section if supported by materials not previously presented to or considered by the Board in making such determination. 4. Army Regulation 15-185 (ABCMR) provides that a request for a reconsideration will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The applicant's submission of his school transcript is evidence not previously considered. 5. The applicant provides: a. A Certificate of Live Birth from the State Board of Health, which shows was born on in. His mother's maiden name is listed as but no father is listed. The certificate provided was issued on. b. School records that show attended Grade One through Grade Nine. These records further show he was born in. His father's name is shown as and his mother's name is shown as. 6. The U. S. District Court for the, on 8 June 1976, found guilty of the offense of possession of a check stolen from the mail. The adjudged a fine of $270.00 and five years' probation. An arrest order from the U.S. District Court for the Eastern District of, dated 23 December 1976, directed any U.S. Marshal, or any other authorized officer, to arrest on the charge that he violated the conditions of his probation. 7. A partial DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 16 March 1977, shows the applicant underwent processing for enlistment under the name. The form indicates that his name, age, and citizenship were verified with his birth certificate. 8. The applicant enlisted in the Regular Army on 5 April 1977, under the name 9. A marriage certificate shows the applicant married on 8 July 1977. 10. A DA Form 4187 (Personnel Action), dated 20 July 1977, shows the applicant's duty status was changed on 19 July 1977, from present for duty to confined by civil authorities. 11. A Memorandum for Record, dated 20 July 1977, shows the applicant was counseled of his rights under Article 31 of the Uniform Code of Military Justice (UCMJ). The memorandum shows he was questioned concerning possible recruiter connivance and he did not allege any recruiter connivance. 12. The applicant's immediate commander notified the applicant on 20 July 1977 of his intent to initiate actions to separate him under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Separations), Chapter 14, for fraudulent entry. In the notification, the commander stated it had been determined that he had fraudulently enlisted in the U.S. Army by concealing his true identity, and his record of a civil conviction. 13. The applicant consulted with legal counsel on 20 July 1977 and was advised of the basis for the contemplated separation action; the possible effects of a discharge under conditions other than honorable conditions for fraudulent entry; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant acknowledged he understood that if he was discharged under conditions other than honorable he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits as a Veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life. b. The applicant requested to personally appear before a board of officers with counsel and that a statement on his own behalf was enclosed. A copy of any statement submitted is not of record. 14. A U. S. District Court for the notification order, dated 21 July 1977, shows that the applicant, under the name, had been arrested for violation of his probation and was remanded to the custody of U.S. Marshal for the district. 15. The applicant's immediate commander, on 22 July 1977, formally recommended the applicant's separation from service under the provisions of Army Regulation 635- 200, Chapter 14. The commander recommended voidance of the applicant's enlistment contract for concealment of conviction by civil court of a felonious offense because the applicant was absent from duty in the custody of civil authorities. 16. The applicant's battalion commander, on 22 July 1977, concurred with the unit commander's recommendation and notate that the applicant's fraudulent entry was clearly within the purview of Army Regulation 635-200, paragraph 14-3 (2), and warranted voidance. Recruiter connivance has not been alleged. 17. The brigade commander, on 29 July 1977, recommended approval stating the applicant's concealed information which, if known, would have resulted in his rejection from the Army. The applicant's absent, due to being in the custody of civil authorities, met the provisions of Army Regulation 635-200, paragraph 14-4a (1)(B) to have his enlistment voided. 18. The separation authority approved the recommended voidance and separation on 8 August 1977 of Private also known as Private with the issuance of separation orders as so as possible. 19. The applicant was separated on 12 August 1977. The DD Form 214 he was issued shows: * his name as * he was separated in the rank/grade of private/E-1 * he was released from Army Control under the provisions of Army Regulation 635-200, Chapter 14 * his characterization of service as "Not Applicable" * his net service this period is shown as 00 00 00 * he had 25 days of lost time (19 July 1977 through 12 August 1977) under Title 10 Unite States Code, Section 972 * a Remarks entry of "Erroneously enlisted as 20. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 21. The ABCMR denied the applicant's request for correction of his name on his DD Form 21 on 4 October 2016. 22. Documentation of the how it was determined that and where one and the same person is not of record nor is there any documentation to show how it was determined that his true last name was 23. The Board should consider the applicant's statement and his overall military service in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record and regulatory. As the applicant bears the burden of proving an error or injustice, the Board found the evidence presented insufficient to overcome the presumption of administrative regularity regarding that portion of the request regarding a correction to his name. Based on the preponderance of evidence available for review the Board determined the evidence presented insufficient to warrant a recommendation for relief. 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: 1. 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 to amend the decision of the ABCMR set forth in in Docket Number AR20150017619 on 4 October 2016. 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 any other relief not stated above. 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army: acting through the ABCMR. The regulation provides that 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. 2. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214 and stated the entries in block 1 (Name) were to be taken from the enlisted record brief; separation approval authority documentation, if applicable; separation order; or any other document authorized for filing in the Official Military Personnel File. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge was 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 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. A general discharge was a separation from the Army under honorable conditions. When authorized it was issued to Soldiers whose military record were satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) established policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions; a pattern of misconduct; commission of a serious offense; conviction by civil authorities; desertion; and absence without leave. Paragraph 14-4a(1)(B) provided the authority procedures for separation and voidance of an enlistment contract due to fraudulent entry. d. Misconduct involving fraudulent entry is currently considered under Chapter 7 that states when evidence to support a deliberate misrepresentation, omission, or concealment of facts which might have resulted in an enlistment rejection; the unit commander will forward a memorandum through the chain of command to the separation authority with their recommendation for discharge; voidance of fraudulent entry; or retention if it is determined that fraudulent entry did occur. A recommendation will be made as to the type of discharge certificate to be awarded. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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.) AR20210013725 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1