ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170006568 APPLICANT REQUESTS: reconsideration of his previous request for a general discharge. 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. 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 AC83-06675 on 19 October 1983. 2. The applicant states: a. He was discharged with a general, under honorable conditions, discharge, and all of a sudden it was changed. His DD Form 214 does not show any “dates of service.” He was part of the Community Hope for Veterans in Buck County, PA and the Supportive Services for Veteran Families (SSVF) Program. Currently, he is unable to receive any assistance or medical services and he has earned this things. He is now mentally disabled due to the stress, etc., of this situation. He was forced to move out of his apartment through the SSVF Program and became homeless due to the change of his discharge. He is now mentally disabled and on medication due to this situation. Yet, because his discharge was changed, he ineligible for the medical services he was receiving from the Department of Veterans Affairs (VA) for his medications. b. He has been a volunteer at the Veteran Stand-down for every year in Levit Town, PA, and he can no longer be there with his brothers and sisters. He would like an upgrade of his discharge so he may continue his life with his head held high. 3. Review of the applicant’s military record shows: a. He enlisted in the Regular Army, in pay grade E-2, on 29 August 1979. He served in Korea from 1 January to 15 July 1980. b. His available records contain the following: (1) Separation Under the Provisions (UP) of Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) memorandum, dated 12 February 1980, wherein after consulting with counsel, the applicant acknowledged the basis of contemplated action for his separation for fraudulent entry UP of chapter 14, AR 635-200; its effects; and the rights available to him. He also acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him and he could be ineligible for many or all benefits as a veteran under both the Federal and State Law and he could expect to encounter substantial prejudice in civilian life. He waived his rights and elected to submit a statement in his own behalf. a. In his statement, the applicant stated that he had been a good troop [trooper] and he had received no Article 15’s in the 6 months that he had been in the Army. He did not intent to disgrace the Army nor did he ever plan to do so in the future. He was sorry for the inconvenience that he had caused the Army. With due respect, he thought he should receive nothing less than a general discharge and would like that to be taken into consideration. (2) Elimination UP Chapter 14, AR 635-200 memorandum, dated 15 February 1980, wherein the applicant’s immediate commander recommended the applicant’s enlistment be voided UP of paragraph 14-4(c), chapter 14, AR 635-200. The immediate commander stated: a. The applicant was found guilty on 24 January 1979 of theft by receiving stolen property, recklessly endangering another person, and terroristic threats. He was sentenced to 2 year’s probation to the Alcohol Therapy Unit of Probation and to pay another individual restitution in the amount of $200.00 within 6 months through the Probation Department. On 25 September 1979, the Probation Department, Common Pleas Court of Philadelphia, caused a probation wanted card to be issued on the applicant for probation violation. b. The applicant’s failure to maintain contact with his probation officer and false statements on his DD Form 1966 (Enlistment/ Reenlistment Document – Armed Forces of the United States) upon enlistment warranted a voiding to his enlistment and elimination from the service. c. During the 4 months the applicant had been a member of the unit, he had failed to demonstrate the responsibility, maturity, and acceptable duty performance necessary for a Soldier in the U.S. Army. He had constantly failed to show up for duty or had left his place of duty without proper authority. He required constant supervision on-duty and his off-duty conduct had been totally unsatisfactory, with numerous reports of misconduct. d. Due to pending elimination proceedings under chapter 14, AR 635-200, other elimination proceedings under chapter 5 or chapter 13 had not been initiated. He should be eliminated from the Army and his enlistment nullified as soon as possible. (3) Elimination UP Chapter 14, AR 635-200 memorandum, dated 28 February 1980, wherein the applicant’s battalion commander recommended approval of the applicant’s elimination action. (4) Four Record of Counselings, dated 21, 22, and 24 April and 2 May 1980, showing he received counseling for failing to make formation, failing to report to duty, and recommended disciplinary actions under the Uniform Code of Military Justice (UCMJ). (5) Memorandum for the Commanding General (CG), dated 29 May 1980, wherein the Command Judge Advocate, stated: a. The applicant was convicted on 24 January 1979 as an adult in the Common Pleas Court of Philadelphia for the theft of receiving stolen property, recklessly endangering another person, and terroristic threats. These offenses would be considered at least misdemeanors and require a waiver prior to enlistment. However, the sentence included 2 years supervised probation to an alcohol therapy unit and waiver could not be granted under the period of probation was completed. b. The applicant did not reveal any of this information prior to his enlistment on 29 August 1979. That concealment was considered fraudulent entry and could be cause for separation. c. Paragraphs 14-5 ad 14-9, AR 635-200, provided the following options in this cases: void the fraudulent entry or direct discharge for fraudulent entry and issuance of an honorable, general, or under other than honorable conditions discharge. Several items of evidence were contained in the file which would sufficiently serve as a legitimate basis for the issuance of an Under Other Than Honorable Conditions Discharge Certificate. d. The applicant requested he received no less than a general discharge. That request and his waiver of the board of officers was made at a time when no adverse information was contained in the file concerning the character of his military service. (6) Elimination UP Chapter 14, AR 635-200 memorandum, dated 3 June 1980, wherein the CG approved the applicant’s discharge UP of paragraph 14-5(1), AR 635-200, for fraudulent entry, directed the voidance of his enlistment contract, and immediate out-processing. (7) DD Form 214 showing he was released from custody and control of the Army on 29 August 1979. The form also shows in: * Item 12 (Record of Service) – his enlistment and separation dates and zero credit for net active service and foreign service * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – the Marksman Marksmanship Qualification Badge with Rifle Bar * Item 24 (Character of Service) – NA * Item 25 (Separation Authority) – Section II, Chapter 14, AR 635-200 * Item 28 (Narrative Reason for Separation) – Misconduct – Fraudulent Entry c. On 19 October 1983, the ABCMR determined that there was no evidence of error or injustice in his release for fraudulent entry and denied his petition for a general discharge. d. On 7 January 2007 and 18 November 2016, the ABCMR denied his requests for reconsideration. 4. By regulation AR 635-200, an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was 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 record showing a fraudulent enlistment, the Board agreed not to provide a characterization of service rated as honorable or otherwise. 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 to amend the decision of the ABCMR set forth in Docket Number AC83-06675 on 19 October 1983. 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. Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, set policies and procedures for the orderly administrative separation of enlisted members. The regulation stated in: a. Paragraph 1-13(1) (Honorable Discharge) – an honorable discharge was a separation from the Army with honor. The issuance of an honorable discharge was conditioned upon proper military behavior and proficient and industrious performance of duty, giving due regard to the rand or grade held and the capabilities of the individual concerned. b. Paragraph 1-13(4)b) (General Discharge) – a general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-13(4)c (Under Other Than Honorable Conditions Discharge) – an under other than honorable conditions discharge was an administrative separation from the service under conditions other than honorable. It could be issued for misconduct, for security reasons, or for the good of the service. d. Paragraph 14-5(1) – members would be considered for discharge when initially convicted by civilian authorities. The sentence by civilian authorities included confinement for 6 months or more, without regard to suspension or probation. An individual discharged under the provisions of this chapter could be furnished a DD Form 256A (Honorable Discharge Certificate), DD Form 257A (General Discharge Certificate), or DD Form 258A (Undesirable Discharge Certificate). In addition to section III, chapter 1, the following factors would be considered in determining the type of discharge certificate to be issued: (a) the character of service would be based on in-service records and activities and (b) false pre-enlistment or pre-induction records would not be used as a basis for characterizing a period of service. e. Paragraph 14-9 (Rights of Individuals) – the appointed counsel for consultation would advise the member of the basis for the proposed discharge action, the types of discharges which could be awarded, the effects of the discharges, and if member was being considered for an undesirable discharge, of his rights as set forth in paragraph 1-10. He also could advise the individual regarding the merits of the contemplated action and assist him/her in preparing any statements or other evidence for consideration by the general court-martial convening authority (para 1-3c). 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20170006568 5 1