ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20160018830


APPLICANT REQUESTS:  

* upgrade of his under honorable conditions (general) discharge to an honorable discharge
* Change to the Reenlistment (RE) Code on his DD Form 214 (Report of Separation from Active Duty)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* Self-authored letter 
* DD Form 214 

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 was not made aware that there were procedures in place to appeal his discharge.  He states that before he enlisted in the Army, he was falsely charged with stealing his mother’s car when he was taking it out for a test drive and that he was told by his court-appointed defense attorney that if he wanted to avoid jail, he should plead guilty to possession of marijuana.  He further states that when he enlisted in the Army he answered that he had not been arrested for possession of marijuana and that no one provided him with counseling or assistance on the repercussions of that decision.

3.  A review of the applicant’s service records shows: 

	a.  He was arrested by the Pomona Police Department on 11 March 1984 for reckless driving and evading arrest while on his motorcycle.  The police report notes that the applicant’s efforts to evade arrest resulted in a high-speed pursuit with a police helicopter that ended when officers drew their weapons on the applicant.

	b.  On 2 April 1984, the applicant plead no contest and was found guilty of reckless driving and received a suspended sentence for resisting arrest and speeding.  He was granted a conditional and revocable release on the condition that he complete two years of unsupervised probation and pay fines.

   c.  He enlisted in the Regular Army on 5 November 1986.  

	d.  On 29 July 1987, Lieutenant Colonel (LTC) X wrote a memorandum on the results of a personnel security investigation into the applicant. 

	d.  On 27 August 1987, applicant’s immediate commander signed DA Form 2496 (Disposition Form) requesting administrative elimination of the applicant under the provisions of chapter 7 of Army Regulation (AR) 635-200. 

   c.  On 25 September 1987, the applicant's immediate commander notified the applicant of his intent to discharge him under the provisions of AR 635-200 chapter 7-17 for fraudulent enlistment.

   d.  On 29 September 1987, the applicant acknowledged receipt of the proposed separation.  He acknowledged/understood:

* if he was furnished a general discharge, he may expect to encounter substantial prejudice in civilian life
* he had the opportunity to consult with legal counsel
* he waived statements on his own behalf

   e.  Consistent with the chain of command recommendation, the separation authority approved the applicants discharge on 7 December 1987 and ordered he receive a general Discharge Certificate. 

	f.  The applicant was discharged from active duty on 15 December 1987 with a general, under honorable conditions discharge.  His DD Form 214 shows he was discharged under the provisions of paragraph 7-17 of AR 635-200 by reason of fraudulent entry with a general, under honorable conditions characterization of service.  He completed 1 year, 1 month, and 12 days of active service.  He was assigned Separation Code of JDA and an RE Code of RE-3. 

4.  By regulation, personnel whose performance of duty, acceptability for the service, and potential for continued effective service fall below the standards required for enlisted personnel in the Army may be discharged.
5.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

6.  By regulation, Soldier separating under paragraph 7-17 of AR 635-200 due to fraudulent enlistment are assigned Separation Code JDA.  The RE Code associated with this type of discharge is RE-3. 

7.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  

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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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 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, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 7-17 (Incident of fraudulent entry) states that fraudulent entry is the procurement of an enlistment, re-enlistment, 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 re-enlistment, might have resulted in rejection.

	d. Paragraph 7–23 (Type of discharge) A Soldier discharged under the provisions of this chapter will be furnished DD Form 256A or assigned a character of service of under other than honorable conditions. 

3.  AR 601-210 (Regular Army and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing.  Table 3-1 lists the eligibility codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-2 is no longer used, effective 1995.

	c.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  RE-3 is appropriate if narrative reason for separation is under the authority of AR 635-200.

	d.  RE-4 applies to Soldiers separated from last period of service with a non-waiverable disqualification.  This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service.  Eligibility:  Ineligible for enlistment.

3.  AR 635-5-1 (SPD Codes) provides 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 (Certificate of Release or Discharge from Active Duty).  Table 2-3 of this regulation identifies the SPD code of "JDA" as the code to assign to members discharged for fraudulent entry. 

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 based on 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)	 AR20160018830


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