PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            12 January 2000
	DOCKET NUMBER:   AR1999026053

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD); and that the Army Good Conduct Medal (AGCM) and the National Defense Service Medal (NDSM) be added to his records.  

3.  The applicant states, in effect, that he received an honorable discharge from the Army for service from 1945 to 1947.  In 1948, he joined the Vermont Army National Guard (VARNG) and volunteered to reenter active duty with his ARNG unit in 1950 at Camp Pickett, Virginia.  He claims that he knew at the time he rejoined the Army that he was doing wrong because his 1947 discharge indicated he could not rejoin the Army.  He goes on to claim that when he arrived at Camp Pickett he approached his commanding officer and the Adjutant General (AG) and requested that he be discharged.  The AG approved his request and he was discharged on 3 November 1951.  He also indicates that he was asked if he wanted a general, under honorable conditions discharge or an UD, and because he did not know the difference between the two he choose the UD.  He states that his mistake was in reenlisting, and that he had served his country honorably as one of six brothers who served during World War II.  He concludes that he is now 71 years of age and an upgrade to his discharge is very important to him at this time.  

4.  The applicant’s military records show that he entered the period of service under review by entering on active duty on 5 September 1950, as a member of the VARNG, and he was assigned to Camp Pickett to perform duties as a Heavy Weapons Infantryman.  

5.  There is a War Department (WD) Adjutant General Office (AGO) Form 
53-55 (Enlisted Record and Report of Separation-Honorable Discharge) contained in the applicant’s record.  This document shows that he was honorably discharged from the Regular Army on 21 July 1947.  It further shows that he completed 1 year, 7 months, and 12 days of active military service and that he served overseas for 1 year, 1 month, and 29 days.  The WD AGO Form 53-55 also indicates that he earned the World War II Victory Medal and the Army of Occupation Medal.  In addition, it indicates that the applicant was discharged, under the provisions of Army Regulation 615-369, by reason of inaptitude, and that he was ineligible for reenlistment, induction, or reinduction on the date of his separation.

6.  There is no separation packet on file, outlining the specific facts and circumstances surrounding the applicant’s discharge from the period of service under review.  There is however, a DD Form 214 (Report of Separation from the Armed Forces of the United States) on file, signed by the applicant.  This document shows that on 3 November 1951 the applicant was separated with an UD, under the provisions of Army Regulation 615-366, by reason of fraudulent entry.  At the time of this discharge the applicant had completed 1 year and 
2 months of active duty on his current enlistment. 

7.  Army Regulation 615-366, in effect at the time, prescribed the procedures for separating members for fraudulent enlistment.  It allowed, in pertinent part, for the separation of a member who had concealed a prior separation from service under provisions that barred their reenlistment or induction.  Individuals discharged under this regulation would normally be issued an UD.

8.  Department of Defense (DOD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, establishes uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, United States Code, section 1553, and applies to the Office of the Secretary of Defense and the Military Departments.  Section 4 of that Directive sets forth the objectives for discharge review.  It provides that a discharge shall be deemed proper unless it is determined that a change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.  Furthermore, a discharge shall be deemed to be equitable unless there is substantial doubt the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time the discharge was considered, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.

9.  Section V of Army Regulation 635-200 provides the current Army policy and procedure for the separation of enlisted personnel for fraudulent enlistment.  In states in pertinent part, that individuals discharged under these provisions may receive an honorable discharge or a general, under honorable conditions discharge, as determined by the quality of their service.  It does allow for an individual discharged under these provisions to have their service characterized as under other than honorable conditions (UOHC).  However, a UOHC characterization of service for individuals being discharged under these provisions for concealing a prior separation, is only appropriate when the prior separation resulted in a less than honorable characterization of service.  

10.  Chapter 3 of Army Regulation 635-200 provides guidance on providing the appropriate characterization of service or description of separation to individuals upon their release from active duty or discharge from service.  Paragraph 
3-7 states, in pertinent part, that an honorable characterization of service is appropriate when the quality of the soldier’s service generally met the standards of acceptable conduct and performance of duty for Army personnel.  

11.  Army Regulation 600-8-22 (Military Awards) prescribes policy, procedure, criteria, and administration instructions concerning individual military awards. Paragraph 2-10 outlines the criteria for award of the NDSM.  It states, in pertinent part, that the NDSM will be awarded to any member who performed honorable service for any period between 27 June 1950 and 27 July 1954.  

12.  Chapter 4 outlines the criteria for award of the AGCM.  It states, in pertinent part, that unit commanders are authorized to award the AGCM to enlisted personnel serving under their command jurisdiction who meet the eligibility criteria.  The immediate commander’s decision to award the AGCM will be based on his or her personal knowledge and of the individual’s official records for periods of service under previous commanders.  It further states, however, that individual’s whose retention in service is not warranted under applicable regulations are not eligible for the AGCM.

CONCLUSIONS:

1.  Although the discharge issued the applicant was proper and equitable at the time it was issued, his record of service does not meet the criteria for an UD by current Army regulations.  

2.  Had the Army Discharge Review Board reviewed the applicant’s discharge under DOD Directive 1332.28, it is reasonable to presume that his discharge would have been upgraded based on the application of the current regulation for discharges based on fraudulent enlistment.  Although DOD Directive 1332.28 provides policy for review of discharges for Discharge Review Boards, it appears appropriate that this Board adopt and apply the standards set forth in this Directive for this particular case.

3.  Accordingly, in view of the current standards for discharges issued because of a fraudulent enlistment, based on concealment of a prior separation, an UD is unduly harsh and unjust.  The Board found no evidence of record to show that the applicant did not generally meet the standard of acceptable conduct and performance of duty for Army personnel, which is the Army regulatory standard for earning an honorable characterization of service.  Therefore, in view of current Army standards, the Board concluded an upgrade of the applicant’s discharge to honorable would be appropriate at this time. 
4.  The Board concluded, given current standards, that the applicant was entitled to the NDSM.  However, given he did not meet the standards for retention in service after either of his periods of service, the Board determined he was not eligible for award of the AGCM.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated with an Honorable Discharge Certificate, dated 3 November 1951, in lieu of the undesirable discharge of the same date he now holds.

2.  That the applicant be awarded the NDSM for having met the regulatory criteria of having served honorably for any period between 27 June 1950 and 
27 July 1954.  

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___inw__  ___ls ___  ___js____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR1999026053	
SUFFIX		
RECON		
DATE BOARDED	2000/01/12	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1951/11/03	
DISCHARGE AUTHORITY	AR 615-366	
DISCHARGE REASON	Fraudulent Enlistment 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.