IN THE CASE OF: BOARD DATE: 16 February 2016 DOCKET NUMBER: AR20150006079 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 an upgrade of his discharge under other than honorable conditions to honorable. 2. The applicant states: * his conviction by civil court happened before he entered the service * his recruiter and probation officer worked everything out to enable him to join the military * he didn't do anything of a criminal nature while serving in the Army * he obeyed the law then and still does * he committed no crime and served with no mishaps * he did his duty as he was supposed to and followed all orders even when he didn't agree with them 3. The applicant provides: * DA Form 2-1 (Personnel Qualification Record – Part II) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 18 July 1980. 3. A Defense Investigative Service Report of Investigation, dated 22 September 1981, was provided to the U.S. Army Recruiting Command on 29 September 1981. The results of the investigation show: * on 9 November 1970, the applicant and another juvenile were arrested and charged with theft of a bicycle – the applicant was released to the custody of his mother * on 9 June 1972, he and another juvenile were arrested and charged with theft, specifically purse snatching – he was released to the custody of his mother * on 9 June 1972 he was declared a Ward of the Court and placed on juvenile probation on 8 July 1972 – his probation was dismissed on 4 October 1973 * on 22 February 1979, he was arrested for burglary and charged with burglary and theft – both felonies to which he pled not guilty * on 12 March 1979 the case was referred to the Superior Court, County of Alameda, Oakland, CA * on 27 April 1979, he plead guilty to the burglary charge and the theft charge was dismissed on a motion of the District Attorney * on 28 July 1979, his sentence was suspended for 2 years and he was placed on 2 years formal probation which began on 28 June 1979 and was successfully terminated on 27 June 1981 * when he was arrested for burglary on 22 February 1979, the investigation disclosed an outstanding traffic warrant for failure to answer to a citation received for not having vehicle license plate registration tabs and a parking violation * records reflect that judgement was suspended for the vehicle plate registration violation on 27 February 1979, but efforts to obtain the disposition of the parking violation were unsuccessful * as of the date of the report of investigation, the applicant still had five outstanding traffic warrants issued on 11 September 1977, 28 September 1977, 2 January 1979, 27 September 1979, and 7 August 1980 4. On 1 March 1982, the Chief, Adjudications Division, U.S. Army Central Personnel Security Clearance Facility, provided the applicant's battalion commander with a copy of the above completed security investigation informing him that the applicant's investigative file contained information indicating the possible existence of a fraudulent/erroneous enlistment. 5. A DA Form 38-22-R (Report of Mental Status Evaluation), dated 12 May 1982, shows a mental status evaluation was requested for the applicant who was being considered for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14. He was found to be mentally responsible, meet the retention requirements of Army Regulation  40-501(Standards of Medical Fitness), and have the mental capacity to understand and participate in the proceedings. 6. On 17 May 1982, the applicant's immediate commander initiated discharge action against him under the provisions of Army Regulation 635-200, paragraph 14-4, for misconduct because of fraudulent enlistment. His commander's letter initiating discharge provided the following reasons: * he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 22 April 1981 for leaving his appointed place of duty, namely an alert perimeter, without permission to sleep * a background investigation revealed he was arrested twice as a juvenile for theft, receiving probation and a reprimand, and once arrested as an adult for burglary, receiving 2 years of probation * when interviewed concerning his omission of facts about his criminal past when filling out his enlistment documents, he said he informed his recruiter of his criminal record but was told by his recruiter not to mention it on the forms * his recruiter also told him he would speak with his probation officer for him * he was counseled on numerous occasions for not following instructions, being late to formation, and his inability to consistently get up on time * those incidents plus what was revealed in the background investigation indicated an individual who does not learn by his mistakes, is not honest, and cannot be totally trusted 7. The applicant was advised by consulting counsel of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him. He waived his right to consideration of his case by a board of officers. He admitted to concealing his arrest record which included two arrests as a juvenile for theft and one as an adult for burglary. He stated his recruiter told him not to reference it on it his enlistment documents. He did not submit statements in his own behalf and waived his right to an administrative separation board. He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that he may also be ineligible for many or all benefits as a veteran under both Federal and State laws if a discharge under other than honorable conditions were issued to him. 8. On 6 July 1982, the approval authority waived the requirement for rehabilitative measures and approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-4, as initiated by his immediate commander. He directed the issuance of a discharge under other than honorable conditions. 9. On 21 July 1982, he was discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct – conviction by civil court. His service was characterized as under other than honorable conditions. His DD Form 214 shows he completed 1 year, 7 months, and 26 days of net active service. 10. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. b. Paragraph 14-4, in effect at the time, stated fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission or concealment which, if known and considered by the Army at the time of enlistment or reenlistment might have resulted in rejection. A member who concealed his conviction by civil court of a felonious offense normally will not be considered for retention. c. Paragraph 14-5 stated that when court-martial charges are not pending or contemplated, commanders exercising general court-martial jurisdiction will take one of the following actions: * void the fraudulent entry by issuing orders releasing the member from Army control for fraudulent entry in all cases involving concealment of previous discharge under other than honorable conditions * retain the member, provided the disqualification is waivable * void the fraudulent entry (other than by a minor enlisted member discussed in paragraph 7-4) by issuing orders releasing the member from Army control for fraudulent entry * approve discharge for fraudulent entry * convene a board of officers, as specified in chapter 1, when the general court-martial convening authority considers a discharge under other than honorable conditions is appropriate d. In addition to those cases where voidance is mandatory, commanders are authorized to void fraudulent enlistments/reenlistments when the service of the member is of too short duration to properly apply establishment standards for award of an honorable, general, or under other than honorable conditions discharge. By the same token, Soldiers should be discharged and their enlistment not voided when commanders believe their performance and conduct clearly merit a characterized discharge under the standards in this regulation. e. Paragraph 14-9 stated that upon receipt of the recommended action, the commander exercising general court-martial jurisdiction will determine whether the fact of fraudulent entry has been completely verified and proven. If the fraudulent entry is verified, and neither a board of officers is to be convened nor the individual retained, the general court-martial authority will direct discharge and issuance of an Honorable or General Discharge Certificate or direct discharge and issuance of a Discharge Certificate under Other Than Honorable Conditions if the member has waived his rights to present his case before a board of officers. f. Paragraph 14-12 stated an individual will be considered for discharge based on conviction by civil court and his case initiated and processed through the chain of command to the general court-martial convening authority when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ is death or confinement for 1 year or more. g. Paragraph 14-15 stated a discharge under other than honorable conditions is normally appropriate for a member discharged for conviction by civil court. h. Paragraph 3-7a states 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. i. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for an upgrade of his discharge under other than honorable conditions to honorable was carefully considered. 2. The available evidence shows the applicant was properly and equitably processed for discharge in accordance with Army Regulation 635-200, paragraph 14-4 pertaining to fraudulent entry in effect at the time. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. Despite a properly constructed and approved discharge packet in accordance with Army Regulation 635-200, paragraph 14-4, for a well-documented fraudulent entry, void of procedural errors which would have jeopardized the applicant's rights, the resulting DD Form 214 does contain what appears to be an administrative error. Where the character of service accurately reflects under other than honorable conditions as approved in the discharge packet, the DD Form 214 erroneously lists Army Regulation 635-200, chapter 14, section III, as the separation authority and "misconduct – conviction by civil court" as the narrative reason for separation. 4. The separation authority should read Army Regulation 635-200, paragraph 14-4 and the narrative reason for separation should show "fraudulent entry" in lieu of "misconduct – conviction by civil court." These errors are not the cause of the applicant's character of service and a correction thereof, which the applicant has not requested, would not justify amending his character of service to honorable. 5. The approval authority was within his rights to direct a discharge under other than honorable conditions based on the applicable regulations in effect at the time. The applicant's records reflect his acceptance of NJP under the UCMJ on one occasion, five outstanding warrants resulting from traffic tickets, and the concealment of two arrests for theft as a juvenile and one arrest for burglary as an adult. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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 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) AR20150006079 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006079 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1