IN THE CASE OF: BOARD DATE: 2 October 2020 DOCKET NUMBER: AR20200002106 APPLICANT REQUESTS: In effect, that his record be corrected to show he did not fraudulently enlist, and that his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 18 December 2019, with a four- page, self-authored statement * an undated one-page document titled "#6 Attachment" citing several Federal Youthful Offenders Correction Act (FYOCA) expungement cases FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he did not have a fraudulent enlistment and his 5th Amendment Rights were violated. Pursuant to Title 18, USC, Section 5010 (FYOCA), his record of conviction was expunged. Because of this, he was actually and factually innocent of the fraudulent enlistment charge and his discharge was a miscarriage of justice. 3. In his four-page statement, the applicant sets out his reasons for enlistment. He notes that he grew up in South Central Los Angeles in an area he describes as a "war zone"; that experience prepared him to be a combat Soldier. Qualifying for enlistment in all branches of the military, he selected the Army due to a family history of honorable Army service. He worked hard in training and was the company guide on. In retrospect, he believes he was wrong for not fighting the charges. He never lied about his pre-service history because his record had been cleared. Included in the applicant's submission is a self-authored page listing several Federal Court cases related to the FYOCA and the ruling about set aside convictions and expunged cases. 4. Tile 18, USC, Chapter 402 (Youthful Offenders Correction Act) was enacted in 1950 and Section 5010 to Section 5026 was repealed by Public Law 98–473, Title II, Section?218 (a)(8) on 12 October 1984. 5. The applicant enlisted in the U. S. Army Reserve (USAR) on 3 June 1985, under the Delayed Entry Program. He was discharged from the USAR on 23 July 1985 and enlisted in the Regular Army on 24 July 1985. [Note: The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty in the Regular Army on 3 June 1985; however, his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he enlisted in the Regular Army on 24 July 1985.] 6. The applicant completed a DD Form 1966 (Record of Military Processing – Armed Forces of the United States) on 24 July 1985. On this form, he marked "yes" in Item 36a, affirming he had been arrested, charged, cited, or held by any law-enforcement authorities; and "yes" in Item 36b, affirming he had been convicted (regardless of whether the record had been sealed, expunged, or otherwise stricken from the court record. However, he only reported three traffic violations at item 36f, which instructed him to "include all incidents with law-enforcement authorities even if the citation or charge was dropped or dismissed or you were found not guilty or you have been told by recruiting personnel or anyone else that the incident was not important enough to list." 7. The Federal Bureau of Investigation (FBI) forwarded a record of offenses reported to the FBI. The form utilizes codes to identify the charges but does not provide further information to interpret what the codes mean. The report shows the office providing the information, the date arrested or the report was received, the charge, and the disposition as follows: * Los Angeles, California Police Department (LAPD), on 15 April 1971, for felony burglary – no disposition shown * LAPD, on 28 August 1971, for California Penial Code (CPC) Section 602 (misdemeanor trespassing), CPC Section 459 felony burglary, and delinquency – no disposition shown * Los Angeles, CA, U.S. Marshal's Service, on 15 February 1972, for bank robbery – no disposition shown * Sheriff's Office, San Diego, CA, on 17 February 1972, for bank robbery (Federal) – no disposition shown * Federal Correctional Institute, Lompoc, CA, on 10 November 1972, on the charge of bank robbery; disposition - sentenced to incarceration for six years; paroled on 12 February 1976; a certificate setting aside the conviction was issued on 30 March 1978 * Sheriff's Office, Los Angeles, CA, on 17 December 1980, for CPC Section 496.1 (receiving known stolen property), CPC Section 487(3) (felony grand theft), CPC Section 12021(a) (felony firearm violation); disposition - dismissal of the charge of Section 487(3) and Section 12021(a) * Compton, CA Police Department, on 20 April 1981, for violation of the California Penal Code (CPC) Section 245(a) (Assault with a deadly weapon), CPC Section 602.5 (misdemeanor burglary or trespassing), and CPC Section 594a (vandalism), CPC Section 242 (battery) and Section 417a (brandishing a deadly weapon or firearm; disposition – 12 months and three days of supervised probation reduced by three days for time served; dismissal of the charges of battery and brandishing a deadly weapon or firearm 8. A Report for Suspension of Favorable Personnel Actions was initiated on 11 September 1985 for concealing a prior arrest record for robbery and burglary. 9. A Rights Warning Procedure/Waiver Certificate was completed on 17 September 1985, for a violation of Article 83 (Fraudulent Enlistment) of the Uniform Code of Military Justice (UCMJ). The applicant acknowledged the receipt of the waiver and requested representation by counsel. 10. The applicant's company commander notified the applicant on 17 September 1985, that he was initiating separation actions against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 7-17, based on the applicant's failure to report all prior records of convictions and notified him of his rights. 11. The applicant consulted with counsel on 24 September 1985 and waived his right to make a statement in his own behalf. 12. The applicant's company commander formally recommended the applicant's separation from service on 25 September 1985, under the provisions of Army Regulation 635-200, paragraph 7-17. 13. The remainder of the separation processing documents are not in the available record. 14. The applicant was discharged on 2 October 1985, under the provisions of Army Regulation 635-200, Chapter 7, for fraudulent enlistment. The DD Form 214 he was issued shows he did not complete training, was not awarded a military occupational specialty, and his service was characterized as "General." 15. The applicant provides a statement listing several court cases dealing with the issue of problems with YOCA. 16. The FBI report shows two charges related to bank robbery were set aside. Nine additional charges ranging from delinquency to assault with a deadly weapon were not set aside nor expunged under the YOCA provision. 17. The applicant completed a DD Form 1966, wherein he was required to divulge any and all arrests and convictions, even if there was a court action expunging the record. 18. The Board should consider the applicant's statement and the supporting documents he provides in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation and the reason for his separation were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. The 5th Amendment of the U.S. Constitution provides that: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 3. Title 18, USC, Chapter 402 (Federal Youth Corrections Act), was established in 1950 and was repealed by Public Law 98–473 on 12 October 12 1984. Section 5010 (Sentence) provided that: a. If the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation. b. If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter until discharged by the Division as provided in Section 5017 (c) of this chapter; or c. If the court shall find that the youth offender may not be able to derive maximum benefit from treatment by the Division prior to the expiration of six years from the date of conviction it may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter for any further period that may be authorized by law for the offense or offenses of which he stands convicted or until discharged by the Division as provided in Section 5017 (d) of this chapter. d. If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision. e. If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsections (b) or (c) it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of the order or such additional period as the court may grant, the Division shall report to the court its findings. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. This regulation provides that: a. 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. 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. c. Paragraph 7-17 provides for separation for fraudulent entry of an individual who obtains a period of service by misrepresentation, concealment or omission of information which, if known, might have resulted in rejection. Such information includes periods of prior service, true citizenship, civil conviction, records as a juvenile offender, concealment of medical defects, AWOL or desertion during a period of prior service, pre-service homosexuality, misrepresentation with regard to legal custody of children and concealment of other disqualifications. Soldiers discharged under Chapter 7 may be issued an honorable discharge, a general discharge or discharge under other than honorable conditions as is determined to be appropriate 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018 [Wilkie Memorandum], regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002106 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002106 7 ABCMR Record of Proceedings (cont) AR20200002106 5