IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110009227 


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, in effect, reconsideration of his request for an upgrade of his dishonorable discharge to an honorable discharge based on an error in the name recorded in his military records under which he served.

2.  The applicant states he served in both the U.S. Marine Corps and U.S. Army under the name "Charles Edward D____."  However, he was court-martialed and discharged from the U.S. Army under the name "Charles D____."  Correction of his records is necessary for his compensation and pension structured settlement.

3.  The applicant provides copies of two discharge documents, five Department of Veterans Affairs (VA) documents, and the Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 30 November 2010.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100014185 on 30 November 2010.

2.  The documents from the VA are new evidence that will be considered by the Board.

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant had prior honorable active duty enlisted service in the U.S. Marine Corps from 1 through 29 April 1971.  Item 1 (Last Name – First Name – Middle Name) shows "D____, Charles."

4.  A DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows the applicant enlisted in the Regular Army for a period of 2 years on 26 July 1972.  Item 5 (Last Name – First Name – Middle Name) shows "D____ Charles."

5.  Headquarters, 1st Battalion, 2nd Infantry, 1st Infantry Division (Mechanized), Fort Riley, Kansas, Summary Court-Martial Order Number 42, dated 13 July 1973, shows the applicant was convicted of being absent without leave from his unit during the period 5 through 14 June 1973 and being derelict in the performance of his duties on 15 June 1973.  He was sentenced to forfeit $79.00 pay per month for 1 month and to perform 45 days of extra duty.

6.  A "Corrected Copy" of Headquarters, 1st Infantry Division, Fort Riley, General Court-Martial Order Number 7, dated 9 July 1974, shows the applicant was convicted of:

* two specifications of violating Article 120, Uniform Code of Military Justice (UCMJ), by raping two different women – one on 2 October 1973 and one on 13 November 1973
* two specifications of violating Article 121, UCMJ, by stealing money from two different women on 13 November 1973 and on 14 November 1973
* one specification of violating Article 128, UCMJ, by assaulting a woman on 14 November 1973 by holding a knife to her throat
* three specifications of violating Article 130, UCMJ, by unlawfully entering a dwelling on 2 October 1973 with intent to commit rape, on 13 November 1973 with intent to commit rape and larceny, and on 14 November 1973 with intent to commit assault consummated by a battery and larceny
* two specifications of violating Article 134, UCMJ, by communicating threat to two different women on 2 October 1973 and 14 November 1973 in violation of Kansas statutes

7.  On 8 February 1974, the applicant was sentenced to be dishonorably discharged, to forfeit all pay and allowances, and to be confined at hard labor for 19 years.

8.  On 9 July 1974, the general court-martial convening authority disapproved the finding of guilty for communicating a threat on 14 November 1973 and approved only so much of the finding of guilty of the remainder of the specification of the violation of Article 130 occurring on 14 November 1973 as finds the accused entered the dwelling with intent to commit assault and larceny.  The remainder of the findings was approved as adjudged.  Only so much of the sentence as provided for a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 18 years was approved.

9.  Following completion of appellate review, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 849, dated 18 August 1975, ordered the affirmed sentence duly executed.

10.  The applicant's court-martial orders consistently show the applicant's name as "Charles D____."

11.  A DD Form 214 (Report of Separation from Active Duty) shows the applicant entered active duty in the Regular Army on 26 July 1972 and he was dishonorably discharged on 19 September 1975 in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 11-1.  He completed 1 year 2, months, and 27 days of net active service and he had 674 days of lost time.  Item 1 (Last Name – First Name – Middle Name) shows "D____, Charles."

12.  ABCMR memorandum, dated 27 May 1993, informed the applicant that Title 10, U.S. Code, section 1552 (as amended), precludes any action by the Board which would disturb the finality of a court-martial conviction.  Specifically, the applicant was informed that the Board cannot set aside his court-martial or vacate his conviction.

13.  On 30 November 2010, the ABCMR denied the applicant's request for an upgrade of his dishonorable discharge.

14.  In support of his request for reconsideration, the applicant provides the following additional documents.

	a.  VA Form 21-526 (Veteran's Application for Compensation or Pension), dated 13 November 2003, item 1a (First, Middle, Last Name of Veteran), shows the applicant entered "Charles D____."   Item 1c (If you served under another name, give name and period during which you served and service number) shows he entered "Charles Edward D____."

	b.  Five additional VA documents consistently show the applicant's name as "Charles D____."

15.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the active Army.
	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the separation approval authority documentation, separation orders, or any other document authorized for filing in the official military personnel file.

	b.  Paragraph 2-4 contains item-by-item instructions for completing the DD Form 214.  The instructions for item 1 state to "enter name in capital letters."

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of his request for an upgrade of his dishonorable discharge to an honorable discharge based on an error in the name recorded in his military records under which he served.

2.  Records show the applicant's military service records, including his DD Form 214, consistently reflect his name throughout the entire period of his military service as "Charles D____."

3.  The applicant provides no documentary evidence (i.e., birth certificate or court order issued prior to his military service) showing his birth/legal name is different from that which is recorded in his military service records.

4.  The applicant provides no evidence that would support an upgrade of his dishonorable discharge.  The type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100014185, dated 30 November 2010.



      __________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)                                         AR20110009227



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ABCMR Record of Proceedings (cont)                                         AR20110009227



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