ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 May 2019

	DOCKET NUMBER:  AR20160019680


APPLICANT REQUESTS:  A reconsideration of his previous request for an upgrade of his characterization of service.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored statement (dated 22 November 2016)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080011451 on 26 August 2008.

2.  The applicant states:

	a.  It wasn’t until the Army was contacted by Congressman LR that he was accused of concealing his records.

	b.  He has always had a Congressional Investigation, but to date, he hasn’t received any justice.

3.  The applicant provided a detailed self-authored letter explaining what he believes happened surrounding the details of his discharge.  He talks about U.S. history, slavery and slave ships, books, novels, investigations, some incidents that occurred in California, Buddhism, movie stars, law suits, old and new economy, and several other issues and subjects.

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

	a.  He enlisted in the Regular Army on 2 September 1975.

	b.  His DD Form 1966, shows he checked off the "NO" boxes which pertained to questions about his background data and involvement with police or judicial authorities.  He certified that the information given in this document was true, complete and correct to the best of his knowledge and belief.  He understood that if any of the information was knowingly false or incorrect he could be prosecuted under Federal Civilian or Military Law or subject to administrative separation proceedings and in either instance, may receive a less than honorable discharge which could affect his future employment opportunities.

	c.  His DA Form 873 (Certificate of Clearance and/or Security Determination) shows he was granted a Secret Clearance on 22 October 1975. 

	d.  On 13 May 1976, the applicant accepted nonjudicial punishment under the provisions of Article 15 for disobeying a lawful order from his superior noncommissioned officer to get a military haircut.  His punishment consisted of reduction to private/E-1.

	e.  On 15 October 1976, the applicant was convicted by a special court-martial of stealing two packets of color prints, valued at $9.38, the property of the Fort Lewis, Main Post Exchange.  The court sentenced him to confinement for 30 days and forfeiture of pay. 

	f.  On 30 November 1977, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-5c (Fraudulent Enlistment).

	g.  On 7 December 1977, he acknowledged receipt of the notification of the proposed separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of AR 635-200, paragraph 14-5c, the effect on future enlistments in the Army, the possible effects of a discharge under honorable conditions, and of the procedures and rights available to him.

* he requested consideration of his case by a board of officer and personal appearance before a board of officers
* he requested consulting counsel representation by an appointed counsel
* he acknowledged he understood if he were issued a discharge under honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and state laws
* he acknowledged he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement on his own behalf 

	h.  A letter dated 22 December 1977 from Congressmen X, stated “The applicant’s field records were not properly posted with pertinent information, which resulted in the applicant being sent to an overseas command, and then immediately sent back.  Secondly, he was given security clearance originally when it has now been “discovery” that he may have entered the service under fraudulent conditions.  Ironically, the fraudulent enlistment question came up immediately after the inquiry from my office was made on his performance record.”

	i.  On 28 December 1977, subsequent to this action, his immediate commander initiated separation action against him for fraudulent entry, under the provisions of paragraph 14-5c, AR 635-200.

	j.  On 29 December 1977, the brigade commander recommended approval of the discharge action.

	k.  On 24 January 1978, the separation authority approved the discharge under the provisions of paragraph 14-5c, AR 635-200 and directed the applicant’s enlistment contract be voided due to fraudulent entry.

	l.  On 30 January 1978, he was discharged from active duty under the provisions of AR 635-200, paragraphs 14-5c.  His DD Form 214 (Report of Separation from Active Duty) shows he completed zero service (Time served during this period of voided service is not creditable for promotion or longevity) and because his record of service was voided, he did not receive a character of service.

4.  On 23 October 2007, the Army Board for Correction of Military Records (ABCMR) denied his request to change his character of service, and stated the evidence presented does not demonstrate the existence of a probable error or injustice.

5.  By regulation, instances of fraudulent entry due to concealment of conviction by civil court required commanders to void the fraudulent enlistment and release the member from Army control.

6.  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.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the short term of service prior to a pattern of misconduct beginning, the Board concluded that the characterization of service received at the time of discharge was appropriate.  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.  Army Regulation (AR) 635-200 (Personnel Separations) in effect at the time, states 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 definition may be cause for discharge for fraudulent entry.  

	a.  Paragraph 5c (Concealment of conviction by civil court) states an individual who concealed his conviction by civil court of a felonious offense normally will not be considered for retention.

	b.  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.  Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  A member will not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts-martial or actions under Article 15 of the Uniform Code of Military Justice.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded.

	c.  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.  When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record.

2.  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.


ABCMR Record of Proceedings (cont)	 AR20160019680


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