ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  7 June 2019

	DOCKET NUMBER:  AR20170009319


APPLICANT REQUESTS:  reconsideration of his earlier request for correction of his records for an upgrade of his under conditions other than honorable discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 149 (Application for Correction of Military Record)

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 AC94-12452 on 4 January 1995.

2.  The applicant stated that when he was drafted he was young and very immature and overwhelmed.  

3.  The applicant’s service records shows:  

	a.  The applicant was inducted into the Army of the United States on 17 April 1968.  

	b.  His DA Form 20 (Enlisted Qualification Record) shows that he was assigned to 4th Engineer AIT (Advanced Individual Training) Brigade, Fort Leonard Wood, MO for AIT on 18 April 1968 to 22 June 1968.  

	c.  As per letter, Subject:  EM Arrested by civil authorities, dated 30 September 1968, the chain of command requested civil authorities provide the status of the applicant to verify if he was in their custody.  

	d. While in AIT, it was discovered that the applicant had entered the Army fraudulently with a history of civil convictions.  In addition, while in training, he was arrested and jailed by civil authorities for grand theft and bail bond jumping.   

	e.  On 14 April 1969, after consulting with counsel the applicant requested a board of officers.  

	f.  The board of officer convened on 14 April 1969 to determine if he should be retained or eliminated from the military under the provision of Army Regulation (AR) 635-206 (Personnel Separations Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion), Section V. Fraudulent Entry.  Subsequently, the board was held and it was discovered that the applicant while in advanced individual training at Fort Leonard, MO had been arrested and jailed by civil authorities for grand theft and bail bond jumping, as well as he entered the Army fraudulently with a history of civil convictions.  The board determined that the applicant was guilty of fraudulent entry and recommended he be discharged and given an undesirable discharge and released from the military.  

	g.  On 6 May 1969, the Army Training Center, Fort Leonard Wood, MO commander approved the discharge for fraudulent entry under the provisions of AR 635-206 and directed the he be furnished an undesirable discharge.  

	f.  On 9 May 1969, the applicant was discharged.  His DD Form 214 shows that he was discharged under the provisions of AR 635-206, section V, Separation Program Number (SPN) 280, misconduct, and fraudulent entry.  His characterization is under conditions other than honorable, He had zero (0) time accrued toward creditable service and 271 days lost time from 13 August 1968 to 9 May 1969.  It also shows he was awarded or authorized:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge

4.  The Board, by letter, on 23 January 1985 notified the applicant that his application for correction of his military records had been denied.

5.  On 3 March 2016, the applicant submitted a request to the Army Review Board Agency (ADRB).  The ADRB by letter, on 30 June 2016 responded to the applicant’s request for an upgrade of his discharge and informed him that the ADRB does not have the authority to consider cases after it has been considered by the Board.  

6.  By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits.  The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up.  

7.  By regulation AR 635-206, provided, in pertinent part, that an enlisted member who had concealed a period of prior separation from any of the Armed Forces under conditions barring reentry into the Army would normally be separated.  When separation for fraudulent entry was warranted an undesirable discharge was normally considered appropriate.  When the member 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.  
8.  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 partial relief was warranted.  Despite the fraudulent enlistment misconduct which could permit the current characterization of service, the Board found that based upon the applicant being in a trainee status with less than 180 days of active federal service, a more appropriate characterization would be to upgrade to Uncharacterized to assist the applicant in any future endeavors.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Uncharacterized.

	 
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.  AR 635-206, Personnel Separations Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion), in effect as the time, establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent entry into the service, conviction by civil court, and absence without leave or desertion.  

	a.  Section V, prescribes procedures for processing of fraudulent entry cases and provides for the administrative disposition of enlisted persons found to have fraudulently entered the Army.

	b.  Paragraph 22, states upon discovery of concealment by an individual of his conviction by civil court of a criminal offense, action will be taken when an individual who concealed his conviction by civil court of a criminal offense for which he was sentenced to imprisonment, probation, or parole, or given a suspended sentence, for a term exceeding 1 year, will be considered for discharge under the provisions of this regulation.  
	c.  Paragraph 23, upon receipt of information that an individual has a criminal record, proof of the fact of concealment may be established by comparing the criminal record against the statements made by the individual as shown on the enlistment or induction record completed at the time of entry into the service.  

	d.  Paragraph 30 states normally an individual discharged under this section will be given an undesirable discharge unless the particular circumstances of the case warrant an honorable or general discharge.  The character of discharge will be based on in-service records and activities.  A false pre-enlistment or pre-induction records will not be used as a basis for characterizing a discharge.  

3.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice.  With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department

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)	AR20170009319


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