ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20170005206


APPLICANT REQUESTS:  upgrade of his other than honorable conditions discharge to 
an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Letter of Support from Congressional House of Representatives

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 separated without conditions, appearing before an 
administrative separation board and without being advised of his right to confer with or 
representation by an attorney.

3.  The applicant provides a letter of support from his Congressional Representative 
(Honorable SS) acknowledging his representation on the applicant’s behalf.  

4.  The applicant's military records are not available to the Board for review.  A fire 
destroyed approximately 18 million service members’ records at the National Personnel 
Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  
However, there were sufficient documents remaining in a reconstructed record to 
conduct a fair and impartial review of this case.  This case is being considered using 
reconstructed records, which primarily consist of a DD Form 214 (Armed Forces of the 
United States)

	a.  His DD Form 214 shows he enlisted in the Regular Army on 9 April 1958.

	b.  His service record is void of the specific facts and circumstances concerning the 
events which led to the discharge from the Army.  However, his DD Form 214 shows:
		(1)  He was discharged on 17 July 1958 under the provisions of Army Regulation 
635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, 
Conviction by Civil Court, and Absence Without Leave or Desertion) with an under other 
tan honorable conditions discharge.  

		(2)  He completed 3 months, and 9 days of active service.  

		(3)  He was assigned Separation Program Number 280 (Fraudulent Entry). 

5.  By regulation (AR 635-206), in effect at the time, prescribes procedures for the 
processing of fraudulent entry cases and provides for the administrative disposition of 
those enlisted personnel found to have fraudulently entered the Army, in violation if the 
Uniform Code of Military Justice, Article 83.

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 
completed prior to the misconduct, the Board concluded 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.

	  
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.  By regulation (AR 635-206), in effect at the time, prescribes procedures for the 
processing of fraudulent entry cases and provides for the administrative disposition of 
those enlisted personnel found to have fraudulently entered the Army, in violation if the 
Uniform Code of Military Justice, Article 83.

 	a.  Paragraph 2a states in no case will the discharge be ordered of an individual 
suspected of fraudulent entry prior to complete verification of the facts concerning the 
alleged concealment, including a thorough examination of pertinent records prepared at 
time of, or prior to, entry into the Army, including records of draft boards, if appropriate, 
regarding statements or admissions made be the person concerned.

	b.  Paragraph 2c states for administrative disposition, reproduction of documents 
pertaining to a prior period of service in any of the Armed Forces, or the immediate 
availability of such documents is unnecessary when administrative disposition is to be 
made as provided by these regulation.  A statement of service is sufficient basis for 
administrative action.

3.  Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), in 
effect at the time, prescribed the policies, standards, and procedures to ensure 
readiness and competency of the force while providing for the orderly administrative 
separation of Soldiers for a variety of reasons.

	a. Paragraph 3-7a (Honorable Discharg states an honorable discharge is a 
separation with honor.  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.

	b.  Paragraph 3-7b (General Discharge) states a general discharge is a separation 
from the Army under honorable conditions.  When authorized, it is issued to a member 
whose military record is satisfactory but not sufficiently meritorious, to warrant an 
honorable discharge.

	c.  Paragraph 7-17a in effect now states 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.  This includes all disqualifying information requiring a waiver.  However, the 
enlistment of a minor with false representation as to age and without proper consent will 
not in itself be considered a fraudulent enlistment.  The following tests must be applied 
in each case of suspected fraudulent enlistment or re-enlistment. These tests will 
establish whether the enlistment or re-enlistment is fraudulent.

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.


ABCMR Record of Proceedings (cont)	 AR20170005206

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