ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    17 April 2019

	DOCKET NUMBER:  AR20160018429


APPLICANT REQUESTS:  The applicant request correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change item 24 from uncharacterized to honorable.

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 three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 receive a character of discharge on his DD Form 214 and would like it updated to reflect honorable or general in order to receive his benefits.  He believes it may have dropped off because his General discharge was supposed to turn honorable after 6 months.

3.  On 21 September 1988, the applicant enlisted in the Regular Army on the delayed entry program.  He entered active duty on 4 October 1988.  His enlistment documents show he informed his recruiter that he was arrested in “87/2” for “Driving Hwy Other Than Legal”. 

4.  On 7 October 1988, the applicant’s record show’s he had a conversation with CPT G., in which the applicant revealed undisclosed juvenile record.  He was arrested for selling drugs (methamphetamine) to an undercover agent.  He was sentenced in juvenile court to 1 year supervised probation, fined $375.00, 10 days public service, and 23 days in a juvenile facility (pre-trial).  He was also subject to urinalysis during probation.  

5.  On 14 October 1988, while at the reception station, the commander had him complete a Rights Warning Procedure/Waiver Certificate prior to him investigating the applicant, for being suspected/accused of Fraudulent Enlistment.  The applicant requested a lawyer.  

6.  On 18 October 1988, while at the Reception Station, the applicant wrote a sworn statement.  He stated under oath, in April 1987, he served probation for one year after being found guilty of a violation of health safety code section 11379.  He was also charged with resisting arrest.  He asked a recruiter about this and was told it might be checked but they usually don’t.  

6.  On 20 October 1988, he was notified by his commander, he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), for Fraudulent Entry.

     a.  He recommended the applicant be eliminated from the service under the provisions of AR 635-200, Chapter 7, Section V, paragraph 7-17.

     b.  The commander advised him of his rights concerning Fraudulent Entry into the service.  He states, “I feel at this time, based on the information that I have, recruiter connivance was involved.”

7.  On 26 October 1988, the applicant was advised by legal counsel and acknowledged that he understood his available rights.

8.  On 1 November 1988, the appropriate authority approved the recommendation for discharge of the applicant and directed he be furnished an entry level separation.

9.  On 4 November 1988, the applicant was discharged accordingly.  He completed 1 month, and 1 day of total active service.  

10.  The applicant states his character of discharge was supposed to be upgraded to honorable after 6 months; he would like it updated to reflect honorable or general so that he may receive benefits.  The available evidence shows in his enlistment document, his record of conversation, and his sworn statement did not show he was arrested for selling a controlled substance.  It does not show he was arrested for the sale of a controlled substance.   

11.  Army Regulation (AR) 635-200 paragraph 7-17 states fraudulent entry is the procurement of an enlistment through any deliberate material misrepresentation, omission, or concealment of information which if known and considered by the Army at the time of enlistment; might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  

12.  The applicant is advised: 

      a.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier had not been in the Army long enough for his character of service to be rated as honorable or otherwise; and  

      b.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge. 

13.  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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when considering discharge upgrades, the Board determined that relief was not warranted.  Based upon regulatory guidance and the discharge of the applicant being initiated within the first 180 days of military service, the Board found that no error or injustice was present.  For that reason, the Board recommended denying the applicant’s request for relief.  

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 Army Board for Correction of Military Records (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.  Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  
     a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

     b.  Paragraph 7-17a (Concealment of conviction by civil court) stated a member who concealed his or her conviction by a civil court of a felonious offense normally will not be considered for retention.

3.  Chapter 11, in effect at the time, set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status and required an uncharacterized description of service for separation under this chapter.
     a.  Separation was warranted when unsatisfactory performance or minor disciplinary infractions was evidenced by inability, lack of reasonable effort or failure to adapt to the military environment.  

     b.  The policy applied to Soldiers who were in an entry level status before the date of the initiation of separation action and had completed no more than 180 days of continuous active duty, could not or would not adapt socially or emotionally to military life, had demonstrated character and behavior characteristics not compatible with satisfactory continued service or had failed to respond to counseling.  

     c.  Entry level status is defined as the first 180 days of continuous active service or the first 180 days of continuous active service after a service break of more than 92 days of active service.


ABCMR Record of Proceedings (cont)	 AR20160018429
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