ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 March 2019 DOCKET NUMBER: AR20160016894 APPLICANT REQUESTS: An upgrade of his service characterization, from "N/A" to either "under honorable conditions" or "honorable." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 1552) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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 his record is incorrect because he enlisted under the buddy system and the Army broke its contract with him since he and his buddy were separated. He left Idaho Falls to discuss an enlistment contract with his recruiter; however, he was not there. Because he left his place of duty, he was arrested in Idaho Falls and eventually released from the Army due to a fraudulent enlistment. He wanted to serve and was trying to keep his part of the bargain; however, the Army did not fulfill its contract with him. 3. The applicant enlisted in the Regular Army on 2 February 1973. 4. The applicant completed a DA Form 3286 (Statement for Enlistment) on 3 January 1973, wherein in Part II – Statement of Law Violations and Previous Conditions, he listed "None" to indicate he had no previous arrests. He also signed a certification; wherein he acknowledged his understanding that a check would be made with the Federal Bureau of Investigation (FBI) and other agencies, immediately upon entrance on active duty, to determine previous records of arrests or convictions or juvenile court adjudications. His signature certified that he had not intentionally concealed or misrepresented any information regarding his record of arrests or convictions or juvenile court adjudications. 5. While attending advanced individual training (AIT) at Fort Leonard Wood, MO, the applicant went absent without leave (AWOL) on or about 12 June 1973. Additionally, he was found to have concealed a conviction by civil authorities upon enlistment. 6. The applicant’s complete discharge packet in not available for review. 7. The applicant's commander notified the applicant that he was recommending him for elimination from military service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, due to his concealment of a conviction by civil authorities. The commander's recommendation is undated and missing the second page. The applicant was not available to acknowledged receipt of the proposed separation notification. 8. The applicant's commander formally recommended his separation from service on 26 June 1973, under the provisions of Army Regulation 635-200, paragraph 14-5c, due to his fraudulent enlistment and violations of the Uniform Code of Military Justice (UCMJ) (AWOL since 12 June 1973). 9. The applicant's intermediate commander recommended his separation from service on 27 June 1973, based on the evidence at hand and noted the applicant was not available for interview as he was AWOL. The Chief of the Personnel Training Branch endorsed the recommendation on 24 July 1973 and the Adjutant General endorsed the recommendation on 25 July 1973. 10. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 25 July 1973, by reason of fraudulent entry. 11. The applicant was discharged on 27 July 1973. His DD Form 214 (Armed Forces of The United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200, chapter 14, and his service was characterized as UOTHC. His DD Form 214 further shows in: * Item 11c (Reason and Authority), the entry "CHAP 14 AR 635-300 SPN 280 FRADULENT ENTRY" * Item 22b (Total Active Service), he was not credited with completing any active service * Item 30 (Remarks), the entry "46 DAYS LOST UNDER 10 USC 972 FROM 12JUN – 27JUL73" and "EM DISCH IN AWOL STATUS" 12. The applicant's records contain a corrected DD Form 214 that was issued on 19 February 1980. The form shows in item 23 (Type of Separation), "Release from Custody and Control of the Army." 13. The applicant applied to the Army Discharge Review Board on 11 May 1981. The Board determined, on 24 August 1981, his separation document was issued in error because the General Court Martial authority directed that his enlistment be voided in accordance with (IAW) AR 635-200, paragraph 14-12g. This action was not completed by the transfer station and should be administratively corrected IAW AR 635-5 change 1 paragraph 2-4 dated 1 July 1981. There is no indication any administrative actions were taken at this point. 14. In reaching its determination, the Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct and fraudulent entry. BOARD VOTE Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant :X :X :X Deny 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, 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b states 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for fraudulent entry cases and provides for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the Service. (1) Paragraph 14-5 provides that an incident of fraudulent entry is the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection. Any incident which meets the foregoing may be cause for discharge for fraudulent entry. (2) Paragraph 14-5c provides that when an individual who concealed his conviction by civil court of a felonious offense normally will not be considered for retention. Specific details of circumstances in a case may be obtained however by direct communication with the appropriate civil law enforcement agency, other than the FBI, by the commander concerned. When information is required from both sources, the inquiries will be dispatched concurrently. (3) Paragraph 14-12g directed that the fraudulent entry be voided when the individual is in a status of unauthorized absence or desertion, or absent in the hands of civil authorities. The orders issuing authority will issue special orders releasing the individual from custody and control of the Army. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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) AR20160016894 4