ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 July 2019

	DOCKET NUMBER:  AR20170014325


APPLICANT REQUESTS:  an upgrade of his uncharacterized discharge

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

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:  

     a.  He was aware of his outstanding ticket and had made arrangements with the court to make payments while serving in the military.  He also states he explained this to his recruiter and was told he could start his pre-advance individual training and then basic training.  In basic he was told that he fraudulently tried to enter military service and was asked to leave.  This discharge was 26 years ago he has since earned a Master’s Degree in Business Administration and has worked as a civil servant for the past 10 years.  He wishes to apply for federal government jobs and is concerned this type of discharge will hinder his opportunity.  

     b.  He has a clean personal/criminal record and has been an upstanding citizen.  He feels that the status of uncharacterized by means of fraudulent entry should be reconsidered and his discharge modified to honorable.  He never concealed the $201.00 ticket and was a 21 year old male trying to better his career potential through service with the National Guard.

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

a.  He enlisted in the Army National Guard on 29 July 1991.  

   b.  On or about 7 August 1991, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of chapter 7, section V, paragraph 7-17, AR 635-200 (Personnel Separations – Enlisted Separations) for fraudulent entry.

  c.  On 7 August 1991, he acknowledge receipt of the notification of the separation action.

   d.  On 20 August 1991, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation under the provisions of chapter 7, section V, paragraph 7-17, AR 635-200.  Member was to be returned to the control of the Pennsylvania State National Guard.

   e.  He was discharged from the Army Reserves on 21 August 1991 with a uncharacterized, under fraudulent entry characterization of service.  His DD 214 reflects completion of 23 days of active service and 1 month and 3 days of inactive service. 

 4.  By regulation members are subject to separation for fraudulent entry if any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by The Army at the time of enlistment or reenlistment, might have resulted in rejection.  
   
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:

1.  After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status.  As such, his DD Form 214 properly shows his service as uncharacterized.

2.  Although he was discharged for fraudulent enlistment, an uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting the applicant's request.  


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 Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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 soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

   c.  Chapter 7-17a (Fraudulent Entry)  of that regulation states fraudulent entry is the procurement of an enlistment, reenlistment, 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 reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.

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 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.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170014325


3


1