BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090011135 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his bad conduct discharge (BCD) be upgraded and that his name be corrected on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect the name on his birth certificate.

2.  The applicant states, in effect, that he is requesting leniency and forgiveness for his past mistakes as an active duty Soldier in the United States Army.  He goes on to state that his life up to this point has pretty much been the same as his days in the military and that he has a sleep disorder which has prevented him from doing a great many things with his life.  He continues by stating that he offers no excuses for any military related actions or an explanation and formally requests an upgrade of his discharge and a correction of his name as reflected on his birth certificate. 

3.  The applicant provides a copy of what appears to be an altered birth certificate, a copy of a social security card with his current name, and a copy of his Georgia driver’s license with his current name.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file,  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army in Richmond, Virginia on 20 November 1990 for a period of 4 years, training as an equipment records and parts specialist, airborne training, and the Army College Fund.  At the time of his enlistment he enlisted under the name of Smith, B---t---K-u and he provided a birth certificate, a social security card, and a school letter for verification of his name, age, and citizenship.

3.  He completed his basic training at Fort Knox, Kentucky, his advanced individual training at Fort Lee, Virginia, and his airborne training at Fort Benning, Georgia before being transferred to Fort Bragg, North Carolina for assignment to a military police company as an equipment and records and parts specialist.  This was his first and only permanent duty assignment.

4.  On 18 November 1991, he was convicted by a general court-martial of larceny of two military pistols and two specifications of false swearing.  He was sentenced to reduction to the pay grade of E-1, forfeiture of all pay and allowances, confinement for 15 months, and a BCD.  However, the convening authority approved only so much of the sentence as provided for a BCD, confinement for 9 months, forfeiture of all pay and allowances, and reduction to pay grade E-1.

5.  On 17 December 1992, the United States Court of Military Review affirmed the findings and sentence imposed by the convening authority.

6.  On 21 June 1993, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 2 years, 3 months and 22 days of total active service and had 197 days of lost time due to confinement.

7.  His DD Form 214 issued at the time of his discharge shows that he was discharged in the name of Smith, B---t---e K-u.  The documents provided by the applicant now show that the applicant’s name is Smith, K------k.  However, there is no evidence to show when his name was changed or the means by which it was changed.

8.  A review of his records shows that in 1998, the applicant authorized officials at the North Carolina Department of Corrections (Division of Prisons) to obtain information from his military records.
9.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, provides 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

11.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.    

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.  

4.  The applicant’s contention that his name should be changed on his DD Form 214 has also been noted and found to lack merit.  The applicant has provided insufficient evidence to establish that he served under an incorrect name at the time he served.  Additionally, the government has a vested interest in ensuring that records reflect the name in which an individual serves and the DD Form 214 serves as a snapshot in time to reflect information that was in effect at the time.  However, a copy of these proceedings will be filed in his official records in order to answer any questions that may arise regarding his name or aliases used.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   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.



ABCMR Record of Proceedings (cont)                                         AR20090011135





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ABCMR Record of Proceedings (cont)                                         AR20090011135



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