ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 May 2019 DOCKET NUMBER: AR20170000651 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge * a person appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * NGB Form 22 (Armed Forces of the United States Report of Transfer or Discharge) * Letter of Support by X, dated 1 May 2016 * Letter of Support by X, dated 24 August 2016 * Masonic Certificates * Army Review Board Acknowledgement Letter, dated 18 January 2017 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: a. He always wanted to be a Soldier from when he was a young boy. On 24 January 1956, he enlisted in the Alabama National Guard (ALARNG) as a 14 year old. He served honorably until 14 July 1957 when he was discharged as a 15 year old. A year later, he and four of his friends decided to join the Army so they went to the recruiting station. The recruiter told them they all could serve in the same unit and stay together under the buddy plan. They all took the entry test but he was married with a child and the score for him was much higher than that of a single person. When the results came back they all had scored high enough to enter as single individuals but his score wasn’t high enough to enlist as a married individual. His friends enlisted without him and shipped to Fort Riley, Kansas for training and he was disappointed. b. The recruiter knew he was disappointed and suggested he get another friend and travel to Rome, GA to enlist there but don’t mention he was married. He stated they went to basic training and arrived two weeks after his other four friends. Over the Christmas holiday he went home and when he returned to Fort Riley he informed his chain of command he was married. At this time he was immediately removed from training and assigned duties as the barracks orderly. He was then given an under other than honorable discharge for lying on his entrance exam. He accepted responsibility and should have used better judgement. He requests his under other than honorable discharge be upgraded to either a general or honorable discharge. 3. The applicant's service records are not available for review. An exhaustive search was undertaken to locate his military records which are necessary for the processing of his application. Unfortunately, they could not be found. This case is being considered based on the DD Form 214 submitted by the applicant. 4. A review of the applicant's DD Form 214 shows: a. He enlisted in the Regular Army on 27 August 1958 for 3 years. At the time of separation, he held military occupational specialty 111.00 (Light Weapons Infantry) and he was assigned to Company A, 1st Battalion Group, 16th Infantry, Fort Riley. b. His DD Form 214 shows on 12 February 1959 the applicant was separated under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), Separation Program Number 280 (Misconduct, fraudulent entry), by reason of fraudulent entry. His service was characterized as under conditions other than honorable. * he completed 5 months and 16 days of creditable active military service * creditable service for a period that is determined to have commenced due to fraudulent entry is not authorized 5. By regulation, Soldiers discharged under this section for fraudulent entry will be given an Undesirable Discharge Certificate, unless the particular circumstances of the case warrant an honorable or general discharge certificate. 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 1. 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 facts surrounding the administrative separation of the applicant, the Board concluded that the characterization and the narrative reason accurately depicted those surrounding facts. For that reason, the Board determined that the characterization of service received at the time of discharge was appropriate. 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. 5/10/2019 X CHAIRPERSON Signed by 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 635-200 (Active Duty Enlisted Administrative Separations), provides for the separation of enlisted personnel: a. 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. Whenever there is doubt, it is to be resolved in favor of the individual. b. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 3. Army Regulation 635-206 (Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 20, Section V, stated upon discovery of concealment by an individual of his prior separation from any of the Armed Forces of the United States under conditions barring reentry into the Army, the individual was considered for discharge. A fraudulent entry was the procurement of an enlistment, reenlistment, 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 reenlistment, might have resulted in rejection. Section V also provided that time spent in an enlistment, which was determined to be fraudulent and was specifically terminated by reason of fraud was not creditable service and the Soldier normally was not considered for retention. Soldiers separated under this chapter could be awarded an honorable discharge, a general discharge, or a discharge under other than honorable conditions. 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 1. 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.