IN THE CASE OF: BOARD DATE: 2 February 2022 DOCKET NUMBER: AR20210013309 APPLICANT REQUESTS: The applicant requests, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) by removing "Fraudulent Entry" as the reason and authority for discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 the recruiter filled out the applicant's enlistment papers and the applicant signed; the recruiter only showed the applicant having two children instead of the three he actually had. The applicant states he feels his chain of command unjustly separated him and he would like his records cleared; he did not want this discharge. 3. The applicant's service records show: a. On 3 January 1973, as part of his enlistment process, the applicant signed a DD Form 398 (Statement of Personal History), which contained all handwritten entries; the form asked the applicant to list his family members, to include parents, spouse, children, brothers, and sisters. The form shows his wife's name (Mrs. H__ M. S__ (maiden name)), as well as two other individuals (male T__ E. C__ and female A__ M. S__), for whom the applicant did not identify a relationship. b. On 5 January 1973, the applicant enlisted into the U.S. Army Reserve (USAR) Delayed Entry Program (DEP). On that date, he also signed a DA Form 3286 (Statements of Enlistment), and, in Part IV (Dependency Statement), the form asked the applicant to identify the relationship and age of all persons for whom the applicant provided support; the applicant only identified his spouse (Mrs. H__ M. C__), and his spouse's name was handwritten on the form. c. On 18 January 1973, the applicant enlisted into the Regular Army for 3 years; the applicant's DD Form 4 (Enlistment Contract – Armed Forces of the United States) showed the applicant was married with one dependent. Upon graduating from BCT, at Fort Dix, NJ, orders transferred the applicant to Fort Leonard Wood, MO for advanced individual training (AIT); on or about 25 March 1973, the applicant arrived at his AIT unit. On or about 30 April 1973, the applicant's AIT chain of command received notice the applicant may have fraudulently entered active duty. d. On 2 May 1973, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for a contemplated separation action pending against him; the applicant waived his right to appear personally before a board of officers with counsel, but elected to submit a statement in his own behalf. In his statement, the applicant affirmed he was married to H__ M. C__, and that they had three children (daughter T__ M. C__, born in 1970; son V__ C__, born in 1971; and son A__ E. C__, born in 1972). The applicant indicated he was "fully supporting" his wife and three children. e. On 3 May 1973, the applicant's AIT commander advised him, via memorandum, that he was recommending the applicant's elimination from military service, per chapter 14 (Fraudulent Entry), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel); the commander indicated the reason for his action was the applicant's concealment of dependents. f. On 21 May 1973, the Chief, Trainee Personnel Section prepared a DA Form 2496 (Disposition Form) addressed to the command's Adjutant General (AG); the form requested the AG's decision on whether to separate the applicant. The Chief wrote, "At the time of enlistment, [applicant] concealed three dependent children, born [children's birth dates]. EM (enlisted member) did not meet basic eligibility criteria for enlistment, UP (under the provisions of) paragraph 2-5 (Waivable Moral and Administrative Disqualifications), AR 601-210 (Regular Army Enlistment Program); therefore, had he revealed his correct number of dependents, EM would have been ineligible to enlist without a waiver." g. On 22 May 1973, the AG (separation authority) approved the AIT commander's separation recommendation and directed the applicant's honorable discharge; on 25 May 1973, orders discharged the applicant accordingly. His DD Form 214 shows he completed 0 years, 0 months, and 0 days of his 3-year enlistment contract; (according to the Department of Defense Military Pay and Allowance Entitlements Manual, then in effect, the applicant's service was not creditable due to fraudulent entry). Item 11c (Reason and Authority) states, "CHAP 14, AR 635-200, SPN (Separation Program Number) 280 (Misconduct. Fraudulent Entry), FRAUDULENT ENTRY." Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) reflects the awards of the National Defense Service Medal and two marksmanship qualification badges. 4. The applicant requests the Board change his separation authority; he maintains his command unjustly separated him for fraudulent entry, and he argues his recruiter inaccurately stated the number of the applicant's dependents. a. During the applicant's era of service, commanders were to initiate separation action when they received information a Soldier may have deliberately misrepresented, omitted, or concealed information that, if known, might have resulted in rejection for enlistment. (1) The regulation tasked the separation authority with validating the information and, if the separation authority determined the Soldier had fraudulently entered active duty, the separation authority could direct the Soldier's discharge or order the Soldier's retention. (2) The regulation indicated the separation authority had the discretion to issue an Honorable, General, or Undesirable Discharge Certificate. b. AR 601-210, in effect at the time, prescribed policies and procedures for potential enlistees to enter the Regular Army. Paragraph 2-5 included a table that identified disqualifications requiring a waiver; the table showed each waivable disqualification by the applicant's category (i.e. non-prior service male, non-prior service female, and prior service Soldiers (male and female)). Before April 1972, a male, non-prior service applicant could enlist without a waiver if they were legally responsible for a child or children under 18 years of age; after April 1972, with the issuance of change 15 to AR 601-201, male applicants had to obtain a waiver. c. Section II (Secretarial Authority), Chapter 5 (Separation for the Convenience of the Government) stated the Secretary of the Army had the prerogative to separate enlisted Soldiers; the Secretary could, at his discretion, issue Soldier either an honorable or under honorable (general) character of service. According to AR 635-5 (Separation Documents), in effect at the time, the associated SPN and reason for separation were "21L" and "Separation for Good and Sufficient Reason when Determined by Secretarial Authority." d. Removing fraudulent entry as the applicant's separation authority would additionally result in his service becoming creditable; based on his 18 January 1973 entry date and discharge on 25 May 1973, the applicant served 4 months and 8 days. e. In reaching its determination, the Board can consider the applicant’s petition, his evidence and assertions, and his service record in accordance with published equity and injustice guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his military service record and documents provided by the applicant. The board agreed the applicant concealed that he had dependent children at the time of his enlistment. The burden of proof lies on the applicant who stated his recruiter completed his packet and omitted his dependent children so that a waiver would not be needed. The Board determined 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 removing "Fraudulent Entry" as the reason and authority for discharge. Therefore, the Board denied relief. 2. The Army has an interest in maintaining the integrity of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. In the absence of evidence that shows a material error or injustice, there is a reluctance to recommend that those records be changed. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, 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 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. 2. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Chapter 5 (Separation for the Convenience of the Government) , Section II (Secretarial Authority), paragraph 5-3 (Authority) stated the Secretary of the Army had the prerogative to separate enlisted Soldiers; the Secretary could, at his discretion, issue Soldier either an honorable or under honorable (general) character of service. Per AR 635-5 (Separation Documents), in effect at the time, the associated SPN and reason for separation were "21L" and "Separation for Good and Sufficient Reason when Determined by Secretarial Authority." b. Chapter 14 (Fraudulent Entry) prescribed policies and procedures for processing fraudulent entry cases. (1) The regulation defined fraudulent entry as the procurement of an enlistment through a deliberate misrepresentation, omission, or concealment of information that, if known, might have resulted in rejection. (2) Once the unit commander received information that a fraudulent entry may have occurred, he/she forwarded a military letter reflecting that information to the general court-martial convening authority (GCMCA). (3) The GCMCA reviewed the information indicating a fraudulent entry and determined whether fraudulent entry was completely verified and proven. If proven, the GCMCA ordered the suspension of the Soldier's pay and directed discharge. The GCMCA could authorize characters of service ranging from honorable to under other than honorable conditions. 3. AR 601-210, in effect at the time, prescribed policies and procedures for enlistment. Paragraph 2-5 (Waivable Moral and Administrative Disqualifications) listed disqualifications requiring a waiver by the applicant's category (i.e. non-prior service male, non-prior service female, and former Soldiers with prior service). With the implementation of change 15, dated April 1972, male non-prior service enlistment applicants could not enlist without a waiver if they had any legal responsibility for a child or children under 18 years of age. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs 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. 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) AR20210013309 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1