Applicant Name: ????? Application Receipt Date: 2011/03/07 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states: "I am requesting my character of service upgraded and my separation code be changed. The infraction for which I was discharged was covered during the waive period. I did not knowingly withhold any information regarding my enlistment in the Army. I was going through some personal issues for which I was in need of counseling. I did request this assistance, yet it was never granted. I did excel in my MOS and believe if I would have received the proper treatment I would still be advancing my military career." II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 080421 Discharge Received: Date: 080530 Chapter: 7 AR: 635-200 Reason: Fraudulent Entry RE: SPD: JDA Unit/Location: C Trp, 3/71st Cav Regt, 3d BCT, 10th Mountain Div, Fort Drum, NY Time Lost: None Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 23 Current ENL Date: 070309 Current ENL Term: 03 Years 18 Weeks Current ENL Service: 01 Yrs, 02 Mos, 22 Days ????? Total Service: 01 Yrs, 02 Mos, 22 Days ????? Previous Discharges: None Highest Grade: E3 Performance Ratings Available: Yes No MOS: 19D10/Cavalry Scout GT: 127 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: NDSM, ASR V. Post-Discharge Activity City, State: Santa Fe, NM Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 21 April 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 7, paragraph 7-17, AR 635-200, by reason of fraudulent enlistment, for having on (070212), during the enlistment process stated that he had no pending charges for any criminal offense(s) and that he enlisted in the United States Army (070309) with an outstanding warrant for his arrest, dated (051018), with a general, under honorable conditions discharge. He was advised of his rights. On 1 May 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own behalf. The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a characterization of service of general, under honorable conditions. The separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 7, paragraph 7-17, of that regulation provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention. Soldiers separated under this Chapter may be awarded an honorable discharge, or a general, under honorable conditions discharge, or a discharge under other than honorable conditions. If in an entry level status the characterization will be uncharacterized. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records during the period of enlistment under review, the issues and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. The evidence of record shows that the applicant failed to disclose during the enlistment process that he had an outstanding warrant for his arrest, dated for 18 October 2005, and was discharged under the provisions of Chapter 7, paragraph 7-17, AR 635-200, by reason of fraudulent entry. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Fraudulent Entry” and the separation code is "JDA." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends that he was unjustly discharged. However, there is a presumption of regularity in the conduct of governmental affairs. This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support his contention that he was unjustly discharged. In view of the foregoing, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 30 September 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 149, Enlisted Record Brief, SGLI Election and Certificate, Record of Emergency Data, Discharge Orders, dated 15 May 2008, Preseparation Counseling Checklist, and DD Form 214 for the period of service under review. VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: NA Other: NA RE Code: Grade Restoration: No Yes Grade: NA Legend: AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20110004363 ______________________________________________________________________________ Page 3 of 3 pages