ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 September 2019 DOCKET NUMBER: AR20170006848 APPLICANT REQUESTS: to have his undesirable discharge upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * VA Form 10-7131 (Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action) 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 (ABCMR) 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 misbehaved when he served because he was told by his recruiter he could get transferred after two months. The recruiter lied to the applicant which led to his rebellious attitude. He was stupid to act that way. He would serve again if he could, but he is too old. a. After his military service, he completed six full years of college, graduating from Wichita State University. He has been a building contractor for 29 years. He promotes the values of military service to young people. He volunteers for veterans events in the area of Kansas. He support the military on his Facebook page. b. He has six family members that have served in various wars and campaigns in the military from World War I to Afghanistan. 3. A review of the applicant’s service record shows: a. DA Form 2-1 (Personnel Qualification Record), item 35 (Record of Assignment) shows the applicant was U.S. Army National Guard (NG) from 19 March 1974 to 1 June 1976 and U.S. Army Reserve from 2 June 1976 to 10 June 1976 (delayed entry). The completed facts and circumstances surrounding his NG enlistment is not available for the Board to review. However, on 11 June 1976, he enlisted in the Regular Army. He served at Fort Lewis, WA as a 91B10 (Medical Corpsman). b. On the following dates, he accepted nonjudicial punishment for: * 20 July 1976; one specification of failing to go to his appointed place of duty * 1 September 1976; one specification of absence without leave (AWOL) from 1 -29 August 1976 * 21 September 1976; one specification of behaving with disrespect towards his superior commissioned officer and one specification of disobeying his superior commissioned officer * 19 October 1976; one specification of failing to go to his appointed place of duty and one specification of AWOL from 17 October 1976 to 17 October 1976 * 12 November 1976; two specifications of failing to go to his appointed place of duty * 23 November 1976; one specification of disrespect to his superior commissioned officer and one specification of failing to go to his appointed place of duty * 24 November 1976; one specification of failing to go to his appointed place of duty c. On 20 September 1976, the commander notified him of his intention to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-5c (Incident of Fraudulent Entry) for concealment of conviction by civil court. d. On an unknown date, the commander initiated separation under the provisions of AR 635-200, chapter 14. The applicant acknowledged receipt. e. On 14 October 1976, after consulting with legal counsel, he acknowledged having been advised by counsel for the contemplated action to separate him under AR 635-200, chapter 14. He waived consideration of his case by a board of officer, a personal appearance before a board of officer, and representation by consulting counsel. He acknowledged: * he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued * he understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life f. On 29 November 1976, consistent with the chain of command recommendations, the separation authority directed the applicant be discharge. He would be discharged under the provisions of AR 635-200, chapter 14, with an undesirable discharge. g. On 7 December 1976, he was discharged from active duty under the provisions of AR 635-200, chapter 14, and issued a under other than honorable conditions discharge. His DD Form 214 (Report of Separation from Active Duty) reflects he completed 4 months and 28 days of active service with 29 days of lost time from 1-29 August 1976. It also shows that he was awarded or was authorized the Marksman and Expert Marksmanship Qualification Badge with Rifle Bar. 4. By regulation, 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 may be cause for discharge for fraudulent entry. 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 applicant’s fraudulent entry and short term of honorable service completed prior to a lengthy pattern of misconduct, 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Paragraph 14-5 (Incident of Fraudulent Entry) 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 may be cause for discharge for fraudulent entry. d. Paragraph 14-11b (Action by the Unit Commander) states when the character of service rendered by the individual supports the issuance of an honorable or general discharge certificate, the unit commander will forward a letter to the commander exercising general court-martial jurisdiction, with the least practicable delay. In these cases the individual need not be afforded the opportunity of a hearing by a board of officers unless the general court-martial authority considers that an undesirable discharge is appropriate. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170006848 5 1