IN THE CASE OF:  	  

		BOARD DATE:  18 September 2014    	  

		DOCKET NUMBER:  AR20140003002 


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 correction of his records to show his name as Y---- R----- H-------- E- B--- and to upgrade his bad conduct discharge (BCD).

2.  The applicant states, in effect:

	a.  He asserts his rights as a member of the "Washitaw Moorish Nation of Northwest Amexem/North America," an aboriginal and indigenous people and culture, to legally change his name in accordance with the laws of the Free Moorish-American Zodiac Constitution.  

	b.  He was wrongfully court-martialed.  Prior to being told his mother had terminal cancer his record was exemplary.    

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), an Illinois Birth Certificate for J--- R------ S----, and a "Legal Notice Name Declaration, Correction Proclamation and Publication."

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 on 22 March 1979 and served his entire period of service under the name J---- R----- S----.

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 3 March 1980 for disrespectful language toward a noncommissioned officer.

4.  A 13 August 1980 special court-martial found the applicant guilty of 6 specifications of being absent from his place of duty, disrespect toward a commissioned officer, disobeying a lawful order from a commissioned officer, and 13 specifications of disobeying a lawful order from a noncommissioned officer.  He was sentenced to confinement for 3 months, forfeiture of $298.00 per month for 3 months, and a bad conduct discharge.

5.  On 25 August 1980, the convening authority approved the findings and sentence.  He directed the execution of the confinement and forfeiture and directed the court-martial be referred to the U.S. Army Court of Military Review.

6.  The applicant was absent without leave (AWOL) from 25 August 1980 through 6 November 1980.  What if any punishment resulted from this AWOL is not of record.

7.  He received NJP on 30 January 1981 for failure to go to his place of duty and disobeying a lawful order from a noncommissioned officer.

8.  The applicant was again AWOL from 15 – 18 February 1981 and from 
21 – 22 February 1981.  What if any punishment resulted from this AWOL is not of record.

9.  The applicant was placed on excess leave from 6 March 1981 through 4 August 1981, 152 days.

10.  On 31 March 1981, the U.S. Army Court of Military Review approved the findings of guilty and the sentence was affirmed.

11.  The applicant was discharged with a BCD on 4 August 1981.  He had 2 years, 1 month, and 25 days of creditable service with 2 months and 17 days of lost time.  

12.  The statutory authority under which this Board was created (Title 10, U.S. Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  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.

14.  Army Regulation 635-5 at the time prescribed 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  All available records show the applicant served his entire period of service under the name of J---- R----- S----.  

2.  The self-declaration of a name change by the applicant has no legal validity.  In any case, for historical purposes the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.

3.  However, this Record of Proceedings will be filed in his military records so a record of his currently-used name will be on hand.

4.  The applicant's contention that he was illegally charged and convicted is without merit.  The applicant was afforded all due process at the time of his court-martial action and the U.S. Army Court of Military Review affirmed the finding and sentence.

5.  The applicant was found guilty by a court-martial on 21 separate charges and specifications.  Both prior to and after his court-martial conviction he had significant additional misconduct.  His record does not show any service sufficiently meritorious to outweigh the misconduct that resulted in his discharge.

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)                                         AR20140003002



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ABCMR Record of Proceedings (cont)                                         AR20140003002



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