ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  13 September 2019

	DOCKET NUMBER:  AR20170002995


APPLICANT REQUESTS:  an upgrade of his General discharge to honorable

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 request an upgrade to his discharge, because he feels he did not 
commit a crime before enlisting and taking his oath of enlistment.  He does not feel 
fraudulent enlistment is a true and factual basis.  He believes what is done, is done and 
would like for his discharge to be changed.

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

   a.	He enlisted in the regular Army on 27 January 1983.

   b.	On 23 June 1983, the Defense Investigative Service, Personnel Investigations 
Center sent a records check on the applicant, which found the following charge:  arson 
of an occupied structure (class 2 felony).

	c.  On 23 May 1983, he appeared in court and was incarcerated for 6 months with a 
fine of $3,000.  On the same date, a motion was granted to dismiss with no charges 
filed and the applicant may serve probation out of state.

	d.  On 23 June 1983, he was confined to civil authorities from 29 March to 23 June 
1983.

4.  On 23 June 1983, the applicant was notified by his immediate commander, he was 
initiating action to separate him under the provisions of Army Regulation (AR) 635-200 
(Active Duty Enlisted Administrative Separations), Chapter 7 paragraph 7-17, for 
Fraudulent Entry.  The applicant spoke with counsel and acknowledged he understood 
his available rights.

5.  On 3 September 1983, the applicant’s immediate commander recommended him for 
discharge, stating that the applicant declared there was recruiter connivance.  

6.  On 29 September 1983, the separation authority approved the recommendation for 
discharge and directed he be furnished an entry level separation.

7.  On 6 October 1983, the applicant was discharged.  His DD Form 214 shows he 
completed 2 months and 7 days of net active service.

8.  Army Regulation 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.  

9.  The Board should 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 review of the application and all evidence, the Board determined relief is not 
warranted.  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 short term of honorable service completed prior to the 
serious offense of a criminal nature, which led to the applicant’s separation, 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.

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. 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.  

     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, 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.  

     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)	 AR20170002995

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