ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 February 2019 DOCKET NUMBER: AR20160014934 APPLICANT REQUESTS: the following corrections to his DD Form 214 (Certificate of Release or Discharge from Active Duty); change: * type of separation to "Entry-Level Discharge" * character of service from "Uncharacterized" to "Honorable" * separation authority from current entry to paragraph 7-16c (Defective or Unfulfilled Enlistment or Reenlistment Agreements – Action When Discovered during Processing and Training), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) * separation code (SPD) to "JET" * reenlistment (RE) code to "RE-1" * narrative reason for separation to "Defective Enlistment" APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Tab 1 – Memorandum * Tab 2 – Affidavit of R__ E. B __, Sr. with Exhibits * Tab 3 – DA Form 2823 (Sworn Statement) by applicant (18 July 1988) * Tab 4 – Polygraph Examination Results * Tab 5 – Eleven Letters of Reference * Tab 6 – Applicant's Photo 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. Counsel states: a. The applicant entered active duty on 12 July 1988; prior to the beginning of his service commitment, he engaged in an extended and in-depth discussion with his recruiter regarding his options in the Army; this included talking about length of service and appropriate military occupational specialties (MOS). The applicant was candid about his past criminal history, specifically noting the Maryland State police had cited him for driving while intoxicated (DWI) on 21 May 1987. He was also clear about having experimented with marijuana and cocaine. Shortly after the DWI incident, the applicant retained the services of an attorney (Mr. X__ X. X__, Sr.). b. The applicant recalls meeting the recruiter for the first time on 3 June 1987 (13 days after the DWI citation). During one of his first meetings with the recruiter, the applicant recalls completing a DD Form 398-2 (Department of Defense – Personnel Security Questionnaire). The applicant completed the form honestly, initialing "YES" for questions 14(a) (Arrests – Have you been arrested, charged, cited, or held by Federal, State, or other Law Enforcement...) and 15(a) (Medical/Financial – Have you ever used any narcotic, depressant, stimulant, hallucinogen..., or cannabis...). After reviewing the DD Form 398-2, the recruiter stated the information the applicant had disclosed in items 14(a) and 15(a) was unnecessary; the recruiter further asserted, if no one could find this information, the applicant should not mention it. The applicant interpreted the recruiter's statement to mean he could and should falsify the questionnaire. c. The applicant "continued to debate with (the recruiter) that the DWI charge was new, he had not appeared at any administrative or judicial hearings regarding the charge, and the matter was still pending." The applicant stressed the incident would reveal itself eventually, and he was wary of completing a form with false information. Meanwhile, with the help of his attorney (Mr. X__ X X__, Sr.), the court gave the applicant probation before judgment on 16 September 1987, along with an 18-month period of supervision by County health officials and the requirement to attend alcohol education classes. The applicant continued to work with the recruiter to submit a packet for Warrant Officer Flight School; on 10 October 1987, he received his appointment, and on 21 October 1987, he passed the flight physical. d. On 9 November 1987, the recruiter asked him to complete another DD Form 398-2; the applicant again expressed his concerns about his criminal record. The recruiter told the applicant none of this information was relevant since a cursory background check had failed to reveal the applicant's DWI. The recruiter also instructed the applicant not to mention his drug use. e. On 22 January 1988, the applicant appeared before a Warrant Officer Flight Training Selection board; he was unanimously selected. On 25 March 1988, the recruiter told the applicant there were no more slots available for Warrant Officer Flight Training; the applicant began to transition from flight training to the language-related MOS 98G (Cryptologic Linguist), which required a top-secret clearance. The recruiter did not offer an in-depth review with regard to security clearance requirements; he simply stated the security screening was a formality, but, again, the applicant should not mention the DWI or his past drug use. The applicant remained concerned he would not pass future security screenings. f. On 24 June 1988, the applicant contacted his civilian attorney saying he had orders for Fort Leonard Wood, MO; he was to report on 12 July 1988 and he wanted to see out-of-state relatives. The applicant's attorney asked the court to discharge the applicant from the remainder of his probation so he could travel out of state. On 29 June 1988, the Judge granted the request by terminating the applicant's probation; this closed the matter. g. On arrival at Fort Leonard Wood, the applicant stepped forward during a "moment of truth" briefing, wherein the attendees were asked if they had anything to disclose. The applicant stated he did not and could not continue to maintain false pretenses; he desired to "extricate (himself) from the lies." A noncommissioned officer (NCO) listened to the applicant and told him, provided he had not committed a felony, no law enforcement officers were looking for him, and that he did not have any outstanding fines, the applicant should not to mention the information to anyone. The NCO also said he would deny having given this advice, if asked. On 15 July 1988, the applicant restated his earlier admissions during a security-screening interview; in addition, the applicant alleged his recruiter had committed unethical practices. h. On 10 August 1988, the applicant's unit completed his administrative separation action; he was discharged on 22 August 1988, per paragraph 17b(3), AR 635-200. The narrative reason for separation was, "Fraudulent Entry" and the character of service was "Uncharacterized." His reenlistment (RE) code was "RE-3." i. The applicant claims a less than honorable character of service is not warranted because his commander pursued no disciplinary actions against him. Further, having an uncharacterized character of service adversely affects his ability to obtain a proper security clearance; it also tarnishes his personal history, and is a hindrance to his civilian career because many prospective employers question why he does not have an honorable discharge. The applicant points out his chain of command did not properly counsel him as to the type of discharge he would receive. j. The applicant further argues an "RE-3" reenlistment code contradicts the other content of his DD Form 214; he bases this assertion on the fact an "RE-3" code suggests he is not qualified for enlistment because he failed to disclose his use of illegal drugs and falsified an official form (DD 398-2). (1) As stated above, the applicant did disclose his drug use to his recruiter; had his recruiter done a proper review, he would have drafted a request for moral waiver and, with the approval of this waiver the applicant would have been allowed to continue his military service. (2) If the intent of the "RE-3" code is to only address the fraudulent entry, then the discharge and separation are improper; if the "RE-3 Code addresses both, then the appropriate separation authority should be paragraph 7-16c, and the narrative reason for separation should be "defective enlistment." k. On 7 July 2016, the applicant underwent a psychophysiological detection of deception (PDD) assessment (also known as a polygraph examination). The examiner, a retired police officer, conducted an in-depth interview that laid out the events, as recalled by the applicant. The examination results led the examiner to conclude the applicant was being truthful and there were no indications of deception; counsel detailed two of the questions asked and showed the applicant's response. l. Counsel notes 29 years have passed since the applicant was discharged; he has moved forward with his life, professionally and personally. He graduated from a university and works as a certified public accountant. However, his military record continues to create friction as he seeks higher positions of responsibility. Counsel provides his own positive observations of the applicant. Had the applicant's youthful missteps been properly handled, he might not have worn a uniform, but he no doubt would have emerged as the same person he is today. The applicant's statements about his attempts to "extricate (himself) from the lies" do not contradict the man he is today; he offers as evidence his sworn statement, which affirms a summary of events and formed the basis for the polygraph examination. He also offers letters of reference from friends and coworkers who attest to the fact he is a valuable and contributing member of society. The applicant's reward for telling the truth (the hallmark of his character) was to be "sandbagged by the silence and denials of those who lacked integrity." 3. Counsel provides: a. An affidavit, with exhibits, from the applicant's attorney during his 1987 DWI court proceedings for the Maryland District Court. (1) The attorney essentially states he defended the applicant in a traffic court matter involving DWI; in the course of his representation, the applicant expressed an intention to join the Armed Forces. As such, the attorney sought the court to give a ruling of probation before judgment with a period of supervised probation; the court granted this request on 16 September 1987. The attorney provides a copy of the court's order, which shows probation for a period of 18 months under the supervision of a DWI monitor. (2) On 24 June 1988, the applicant told his attorney he had orders to report to Fort Leonard Wood; to accommodate the applicant, the attorney request the court to discharge the applicant from the remainder of his probation. The judge in the applicant's case granted the request on 29 June 1988 (the attorney provides a copy of the handwritten order). (3) The attorney provides details of his contacts with the applicant's unit commander on 12 September 1988. b. Applicant's sworn statement, prepared on 18 July 1988, in which he described the circumstances involved with his enlistment. In the statement he acknowledged he had been involved with marijuana, cocaine, and had had two charges for driving under the influence (DUI). He affirmed he had not listed any of these on his enlistment documents, and that he was making this statement to "extricate (himself) from the lies." c. Polygraph examination results, dated 7 July 2016, in which the examiner stated the case facts, pre-test information, a listing of the two questions asked, and the examiner's opinion that the applicant was truthful in his answers. d. Eleven letters of reference from friends and coworkers, all of which attest to the applicant's trustworthiness, maturity, and character. 4. The applicant's records show: a. In preparation for his enlistment into the Regular Army (RA), the applicant completed a DD Form 1966 (Record of Military Processing – Armed Forces of the United States). The applicant first certified the form on 10 October 1987; he affirmed his entries were true, complete, and correct to the best of his knowledge, and he acknowledged he could receive a less than honorable discharge if the information was knowingly false. On 12 July 1988, he recertified the form, with no changes noted. The form showed: (1) Item 31 (Have you ever been arrested, apprehended, charged, cited, or held by Federal, State, military, or other law enforcement, or juvenile authorities, regardless of whether the citation was dropped or dismissed, or you were found not guilty? Include all courts-martial or nonjudicial punishment while in military service. If "YES," enter details in item 35 (Law Violations)). Applicant entered his initials in the "YES" block. (2) Item 32 (As a result of being arrested, apprehended, charged, cited, or held by Federal, State, military, or other law enforcement, or juvenile authorities, have you ever been convicted, fined by, or forfeited bond to Federal, State, or other judicial authority, or adjudicated a youthful offender or juvenile delinquent (regardless of whether the record in your case has been "sealed" or otherwise stricken from the court record); or have you been released from parole, probation, juvenile supervision, or given a suspended sentence, or relieved of charges pending on condition that you apply for or enlist in the United States Armed Forces? If "YES," enter details in item 35). Applicant entered his initials in the "YES" block. (3) Item 35 (Law Violations – Explain below "YES" answers given in items 31 through 34 above. (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)). Applicant entered one speeding ticket, dated 13 March 1987, for which he paid a fine; no court was required. (4) Item 36a (Character and Social Adjustment: If your answer to every question is truthfully "NO," indicate so in the appropriate space. If your answer is "YES," indicate so in the appropriate space and give details in item 39 "Remarks." A "YES" answer will not necessarily disqualify you for enlistment; it will depend on the circumstances surrounding the situation) – (Questions (1), (2), and (3) below concern possession, supply, use without prescription of marijuana, narcotics, LSD (Lysergic Acid Diethylamide), or other dangerous drugs. A "YES" answer to (3) has no bearing on your eligibility to enlist or be commissioned, but is essential to accurate job classification. Additional screening will occur during basic training or officer training school). * (1) Have you ever used narcotics, LSD, or other dangerous drugs? – applicant initialed the "NO" block * (2) Have you ever been a supplier or narcotics, LSD, or other dangerous drugs or marijuana? – applicant initialed the "NO" block * (3) – question lined out and not legible (5) Item 36b (Has your use of drugs or alcoholic beverages (such as liquor, beer, or wine), ever resulted in your loss of a job, arrest of police, or treatment of alcoholism? (handwritten entry: "or for drug abuse, or suspension, or expulsion from school)) – applicant entered his initials in the "NO" block. b. On 9 November 1987, also as part of his enlistment in the RA, the applicant completed a DD Form 398-2. (1) Item 14 (Arrests) shows the applicant's initials in the "NO" blocks for all questions, essentially indicating no arrests by law enforcement and no court convictions. He also showed entries of "NA" (not applicable) for the blocks pertaining to dates, nature, and locations of offenses. (2) Item 14 (Medical/Financial) reflects the applicant's initials in the "NO" blocks, in effect affirming no prior drug use and no previous alcohol use that resulted in arrest or treatment. c. The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 28 March 1988. On 12 July 1988, he was discharged from the USAR DEP and enlisted in the RA; he was sent to Fort Leonard Wood for initial training. d. On 15 July 1988, at Fort Leonard Wood, a special agent (SA) from the military intelligence group interviewed the applicant; during the course of that interview, the applicant made an allegation of possible unethical recruiting practices by the applicant's recruiter. On 18 July 1988, the SA took the applicant's sworn statement. e. On 20 July 1988, the legal clerk of the Adjutant General Battalion contacted the clerk for a municipal court in New Jersey, and confirmed the applicant received a DWI ticket (Number B5XXX) on 27 May 1981. His New Jersey court date was 23 June 1981 and the court fined the applicant a total of $265; he also received a 60-day suspension. (On 29 July 1988, the court provided written confirmation of the applicant's conviction). f. On 21 July 1988, the legal clerk contacted the clerk of a Maryland District Court, who verified the police issued the applicant a DWI ticket (Number 71XXXX) on 21 May 1987; he appeared before the court on 16 September 1987 and the court placed him on probation for 18 months. The court terminated probation on 29 June 1988. (The court submitted written proof of case disposition). g. On 10 August 1988, the applicant's Fort Leonard Wood commander informed him of his intent to separation the applicant under the provisions of paragraph 7-17, AR 635-200, based on fraudulent enlistment. The commander stated he was recommending an entry-level separation. h. On 12 August 1988, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action; he understood his rights and the effects of waiving those rights. He waived his right to submit a statement in his own behalf. i. On 18 August 1988, the separation authority approved the commander's recommendation, and directed the applicant's discharge with an entry-level separation. The separation authority also suspended the applicant's pay and allowances, per the Department of Defense Pay and Allowances Entitlements Manual, Part I. j. On 22 August 1988, the applicant was discharged with an uncharacterized character of service per paragraph 7-17b(3), AR 635-200. His DD Form 214 shows he completed 1 month and 11 days of net active service. The SPD was "JDA"; the RE code was "RE-3"; and the narrative reason for separation was "Fraudulent Entry." 5. Regulatory guidance mandates certain entries on the DD Form 214: * AR 635-5 (Separation Documents) does not show "Entry-Level Discharge" as an authorized entry for type of separation; current entry of "Discharge" is correct * AR 635-200 stated Soldiers separated within their first 180 days of continuous active service were issued an uncharacterized character of service; two exceptions: when the type of separation authorized an under other than honorable conditions discharge, or when directed by the Secretary of the Army * AR 635-5-1 (SPD Codes) required specific SPDs and narrative reasons to be listed on the DD Form 214 based on the law or regulation authorizing separation; SPD "JDA" and narrative reason for separation, "Fraudulent Enlistment" are associated with separations due to paragraph 7-17b(3), AR 635-200 * SPD/RE Code Cross Reference Table is cross reference table showing SPD code and a corresponding RE code; SPD code of "JDA" was associated with "RE-3" 6. AR 635-200 provided guidance to commanders for determining whether a defective or a fraudulent enlistment had occurred. a. Defective enlistment meant a Soldier was qualified for enlistment, but not for the specific option; no fraud was involved. To find whether a defective enlistment had occurred, commanders had to determine: * there had been a material misrepresentation by recruiting personnel, upon which the member reasonably relied, and thereby was induced to enlist for the option; or * an administrative oversight or error took place on the part of the recruiting personnel in failing to detect that the member did not meet all the requirements for the enlistment commitment; and * the member did not knowingly take part in the creation of the defective enlistment b. Fraudulent enlistment took place when a Soldier knowingly concealed facts that would have made him or her ineligible for enlistment; this included concealing information with alleged or actual recruiter connivance. Commanders were to apply two tests for each case of suspected fraudulent enlistment; any incident that met the following two tests were grounds for fraudulent entry separation: * First Test – commanders were to determine if previously concealed information was in fact disqualifying; any waivable or nonwaivable disqualification concealed, omitted, or misrepresented constituted fraudulent entry * Second Test – commanders had to verify the existence and true nature of the apparent disqualifying information c. The applicant's DD Form 1966, signed 10 October 1987 and recertified on 12 July 1988, listed no drug use and one speeding ticket, dated 14 March 1987. d. His DD Form 398-2, signed 9 November 1987, showed no previous arrests, charges, or citations; he also indicated no prior use of drugs. e. The applicant's commander verified: * 27 May 1981 – New Jersey citation for DWI; court convicted and fined the applicant; he also received a 60-day suspension * 21 May 1987 – Maryland citation for DWI, which resulted in a court appearance, probation before judgment, and 18-months of probation (terminated 29 June 1988 based on applicant's entry on active duty and attorney's request) f. In his sworn statement, the applicant affirmed his prior use of marijuana, cocaine, and he stated he had had two DUIs; he acknowledged he had not listed any of the foregoing on his enlistment documents. He provided his sworn statement because he wanted to "extricate (himself) from the lies." 7. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The Board agreed to grant a “defective enlistment” narrative reason for separation the JET SPD code understanding the Recruiter may have encouraged the applicant to not fully disclose his police record. The Board determined there is insufficient evidence to grant the remainder of the relief as the characterization of his service followed regulatory guidance during his entry level status. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 by amending: * Item 25 to read AR 635-200, PARA 7-16c * Item 26 to read JET, and * Item 28 to read DEFECTIVE ENLISTMENT. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to amending his DD Form 214 by amending the type of separation, the character of service, and the reenlistment code. 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 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. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-4 (User Guidance) identified specific subject areas found in the regulation. * Defective/Unfulfilled Enlistment – meant a Soldier was qualified for enlistment, but not for the specific option; no fraud was involved * Erroneous enlistment – defined as one that would not have happened if all relevant facts had been known or if applicable regulations had been followed; this type of enlistment could not be the result of fraud * Fraudulent entry – this occurred when a Soldier knowingly concealed facts that would have made him or her ineligible for enlistment b. Paragraph 3-5 (General Considerations). A Soldier's characterization of service resulted from the quality of the Soldier's service, including the reason for separation. It was important to reflect accurately the nature of a Soldier's service because of the effect character of service could have on such things as eligibility for Veterans' benefits, the ability to reenter the Armed Forces, and acceptability for employment. Quality of service was to be determined based on the standards of acceptable personal conduct and duty performance; the Uniform Code of Military Justice (UCMJ), as well as Army directives and regulations, contain these standards. In addition, time-honored military service customs and traditions were taken into account. c. Paragraph 3-9 (Uncharacterized Separations). (1) Entry-Level Separation. The regulation described a separation as entry-level when commanders initiated separation processing while the Soldier was in an entry-level status (i.e. within the first 180 days of continuous active service). Two exceptions were listed: * character of service could be under other than honorable conditions, when authorized by the reason for separation and warranted by the case circumstances * when the Secretary of the Army determined, on a case by case basis, that an honorable character of service was clearly merited by the presence of unusual circumstances involving personal conduct and duty performance; authorized for specific situations, to include Secretarial plenary authority (2) Void Enlistments or Inductions. A Soldier was not to receive a discharge, characterization of service, or an entry-level separation if the enlistment or induction was void; the exception was when a constructive enlistment arose. If either a characterization of service or an entry-level separation was not required, commanders were to publish only an order of release from the custody and control of the Army. (a) Although an enlistment was void at its inception, a constructive enlistment could arise in the case of a Soldier who: * voluntarily submitted to military authority * met the mental competency and minimum age requirements at the time of voluntary submission * received military pay and allowances * performed military duties (b) When an enlistment was void at its inception, followed by a constructive enlistment within the same term of service, commanders were to grant a characterization of service or a description of separation in accordance with paragraph 3-5 and 3-9, as appropriate. d. Chapter 7 (Defective Enlistments and Inductions). (1) Section IV (Defective or Unfulfilled Enlistment or Reenlistment Agreements) addressed claims of defective or unfulfilled enlistment agreements. Paragraph 7-16a (Defective Enlistment Agreements) stated a defective enlistment agreement existed when the member was eligible for enlistment in the Army but did not meet the prerequisites for the option for which enlisted. Commander were to award an honorable discharge under this provision, except when the Soldier was in an entry-level status. A defective enlistment occurred when: * there had been a material misrepresentation by recruiting personnel, upon which the member reasonably relied, and thereby was induced to enlist for the option; or * an administrative oversight or error took place on the part of the recruiting personnel in failing to detect that the member did not meet all the requirements for the enlistment commitment; and * the member did not knowingly take part in the creation of the defective enlistment (2) Section V (Fraudulent Entry) pertained to the procurement of an enlistment through any deliberate material misrepresentation, omission, or concealment of information. If the Army had known and considered this information at the time of enlistment, rejection might have resulted; this included all disqualifying information requiring a waiver. Commanders were to apply the following tests for each case of suspected fraudulent enlistment: (a) First Test – commanders were to determine if previously concealed information was in fact disqualifying; this information was to be evaluated using the criteria for enlistment in AR 601-210 (RA and Army Reserve Enlistment Program). Any waivable or nonwaivable disqualification concealed, omitted, or misrepresented constituted fraudulent entry. This included concealing information with alleged or actual recruiter connivance. If, however, the newly revealed information did not amount to a disqualification, then there was no fraudulent enlistment. (b) Second Test – commanders had to verify the existence and true nature of the apparent disqualifying information. Verification of the actual offense might reveal no disqualification, and thus not constitute fraudulent entry. For example, if the Soldier alleged a conviction for burglary and placement on probation, commanders were to inquire as to whether a court actually convicted him/her. Commanders could determine, while the initial charge was burglary, civilian authority reduced the charge to trespass (a minor, non-traffic offense for enlistment purposes). (3) Any incident that met the foregoing two tests could be cause for fraudulent entry separation. An example of fraudulent entry was the concealment of a conviction by civil court and concealment of other disqualifications. In this instance, commanders were not to consider Soldiers for retention if they had concealed a conviction by a civil court for a felonious offense. (4) Upon receipt of the unit commander's separation request, the separation authority determined whether fraudulent entry was verified and proven. If verified, the separation authority was to take action to suspend the Soldier's pay and allowances. The separation authority also directed the Soldier's discharge and the issuance of an honorable or under honorable (general discharge) character of service. In determining the character of service, the separation authority was to assess the evidence of preservice misrepresentation, which would have precluded, postponed, or otherwise affected the Soldier's enlistment. In addition, because fraudulent enlistment was an offense under the UCMJ (Article 83), and based upon acceptance of pay and allowances, such improper acceptance of pay was as an "in-service" activity that separation authorities could factor into the character of service determination. 3. AR 601-210, in effect at the time, prescribed policies and procedures of the enlistment of RA and USAR enlistees/applicants. a. Chapter 2 (Basic Qualifications and Verification for Enlistment in the RA and USAR, Non-Prior Service Applicants) outlined enlistment considerations. Paragraph 2-2 (Basic Eligibility Criteria for All Non-Prior Service Applicants), Table 2-1 (Basic Eligibility Criteria and Verification Procedures for Enlistment of Non-Prior Service Personnel) listed eligibility rules. Rule G (Moral and Administrative Criteria) required recruiters to interview prospective applicants regarding any records of arrest, charges, or convictions, including those expunged or sealed; if the applicant admitted to an offense, the recruiter started the police records-check procedure. A DD Form 369 (Police Records Check) was required for all other admitted offenses, regardless of disposition. b. Table 3-6 (Armed Forces RE Codes, RA RE Codes) showed RE codes: * "RE-1" applied to Soldiers completing their initial term of active service who were fully qualified when last separated * "RE-3" applied to Soldiers who were not qualified for continued Army service, but the disqualification was waivable c. Chapter 4 (Waivable and Nonwaivable Enlistment Criteria). (1) Table 4-1 (Waivable Moral and Administrative Disqualifications). (a) Line F – One or more civil convictions, or two or more other adverse dispositions for misdemeanors. Waiver approval authority was the Commander, Recruiting Battalion; the Commanding General (CG), U.S. Army Recruiting Command (USAREC) approved waivers for two or more convictions or adverse dispositions. (b) Line K –Applicants who had entered a plea of guilty or "nolo contendre" that was accepted by the court, despite later processing in the same case, to permit dismissal of the charge, based on any of the following: absence of later violations; evidence of rehabilitation; and/or satisfactory completion of a period of probation or supervision. (c) Line M – Applicants for the Personnel Reliability Program (PRP) and other identified critical or sensitive positions, where the applicant had used cannabis during the 90-day period before application for enlistment. CG, Military Personnel Center (MILPERCEN) was the approval authority for a waiver. (d) Line W – Applicants having a history or possible history of alcoholism, who had been rehabilitated for a period of 1 year. CG, USAREC approved waivers for non-prior service applicants. (2) Table 4-1C (Typical Misdemeanors), applied to cases where the maximum confinement under local law is more than 4 months. Driving while intoxicated was on the list; where there were two or more DWIs, the CG, USAREC approved waivers. (3) Table 4-2 (Nonwaivable Moral and Administrative Disqualifications). (a) Line C – Alcoholism (citing Table 4-1, Line W). (b) Line M – Persons under civil restraint, such as probation or a suspended sentence. (4) Table 4-14 (Rules Governing Processing of Moral Waivers). On the DD Form 1966, list all offenses, despite outcome. (a) The term, "Civil Court Conviction" meant court records showed the entry of a judgment of guilty or an accepted plea of "nolo contendre." This was the case whether or not sentence was then imposed, withheld, or suspended, or if later proceedings deleted the initial determination of guilt based on satisfactory completion of rehabilitation or probation. (b) "Other Adverse Disposition" referred to all law violations that were not civil court convictions, but resulted in an arrest or citation for criminal misconduct, followed by the formal imposition of penalties or other requirements by any governmental agency. Examples included deferred acceptance of guilty plea programs, enrollment in supervision programs, or orders to attend classes or serve probationary periods that did not constitute civil court convictions. 4. Article 27, section 641, Maryland Code (recodified in 2001 without substantial change as Section 6-220), stated, with the consent of a person guilty of a criminal offense, the court had the power to “stay the entering of judgment, defer further proceedings, and place the person on probation." This occurred when a defendant pleaded guilty, nolo contendre (no contest), or was found guilty of a crime. The result was, although it was imposing probation, the court had not found the defendant guilty of the charge, and defendants were able to state accurately a court had not convicted them. a. The court can do this when it determines it is in the best interests of the defendant and the public welfare are served, and the defendant gives written consent after determination of guilt or acceptance of a nolo contendre plea. b. The conditions may include participation in a rehabilitation program. The court can order the Department of Health and Mental Hygiene to evaluate the defendant; the court shall review the evaluation and impose a period of probation, which will require participation in an alcohol education program. c. A violation of probation allows the court to enter a judgment and proceed as if the defendant was not on probation. 5. AR 635-5, in effect at the time, prescribes policies and procedures for the completion of the DD Form 214. The regulation stipulated required entries as follows: a. Item 23 (Type of Separation). For enlisted personnel the only authorized entries were: * Relief from Active Duty (AD) * Discharge * Retirement * Separation and Order to Additional AD * Release from AD for Training (ADT) * Relief from ADT and Discharge from the Reserve of the Army b. Item 26 (SPD) and 27 (RE Code) – Enter the SPD representing the reason for separation as stated in AR 635-5-1 (SPD Codes); for Soldiers discharged for cause, enter proper RE code. 6. AR 635-5-1, in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identified the SPD code of "JDA" applied to Soldiers separated under the provisions of paragraph 7-17b(3), AR 635-200; the associated narrative reason for separation was "Fraudulent Entry." 7. The SPD/RE Code Cross Reference Table provided instructions for determining the RE code for Active Army Soldiers and RC Soldiers. This cross reference table showed the SPD code and a corresponding RE code. The SPD code of "JDA" was associated with either "RE-3" or "RE-4," where "RE-4" was assigned in cases involving a court-directed discharge (i.e. bad conduct or dishonorable). 8. 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. ABCMR Record of Proceedings (cont) AR20160014934 11 1