ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  3 October 2019

	DOCKET NUMBER:  AR20170014754


APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge to honorable conditions.

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 when applying for a state veteran’s cemetery, he was denied.  The reason for the denial was because he was discharged on 10 May 1965 under Chapter 14 Sec. II Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion for fraudulent entry due to the concealment of pre service criminal history on enlistment documents.  He has no recollection of having a criminal history when he enlisted.  He believed he was being discharge because he was married with two children.  He believe his recruiter lied on his application, which resulted in him being discharged from the Army.  He enlisted because the recruiter told me it would be better than being drafted.  He just signed where the recruiter told him to sign.

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

a. He enlisted in the Regular Army on 25 February 1965 and was assigned to 
Fort Leonard Wood, Mo for basic combat training.

	b.  On 1 April 1965 on DA Form 269 (Report for Suspension of Favorable Personnel Actions), the applicant was flagged for elimination because of fraudulent entry and placed on a no pay status.  

	c.  On 7 April 1965, applicant was notified by his immediate commander’s intent to separate him under the provisions of paragraph 13g, section II, AR 635-206.  Concealment of information by enlisted man at time of enlistment constitutes fraudulent entry.

  d.  On 7 April 1965, after consulting with legal counsel, the applicant acknowledged notification of the basis for the contemplated action to accomplish his separation for fraudulent entry under the provisions of AR 635-206.  He waived a hearing before a board of officers, did not submit written statements in his own behalf, and waived representation by qualified military counsel.  He understood:
  
* if an Undesirable Discharge is issued that it would be under conditions other than honorable
* he may be deprived of many or all rights as a veteran both under Federal and State laws
* he may expect to encounter substantial prejudice in civil life in situations where the type of service rendered in any branch of the Armed Forces or the type of discharge received may have a bearing

	e.  On 7 April 1965, his immediate commander recommended approval of the initiation of separation proceedings under the provisions of paragraph 13g, section II, AR 635-206.  He stated base on the facts the applicant has no desire to Soldier, wants to be discharged, and is below average in training.

	f.  On 7 April 1965, consistent with the chain of command recommendations, the separation authority approved the discharge request under the provisions of 
AR 635-206.  He directed the applicant receive an Undesirable Discharge Certificate.

	g.  On 10 May 1965, the applicant was discharged under the provisions of paragraph 13g, section II, AR 635-206 for fraudulent entry, with an under honorable conditions (general) discharge.  His DD Form 214 shows he had no total active service days reflected.  

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations

5.  By regulation, members will be considered for discharge if concealment of any fact, circumstances, or condition that existed prior to entry which would have made the individual ineligible for acceptance, other than concealment of minority or true name.  Normally an undesirable discharge is considered appropriate unless the particular circumstances of the case warrant an honorable or general discharge.

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 documentary evidence in the record showing the applicant fraudulently enlisted and the failure of the applicant to prove sufficient evidence to show otherwise, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s record.

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 635-206, (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 27, Section V (Concealment of Other Disqualifications) states members will be considered for discharge if concealment of any fact, circumstances, or condition that existed prior to entry which would have made the individual ineligible for acceptance, other than concealment of minority or true name.

	b.  Paragraph 30, Section V (Character of Discharge) 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 following factors will be considered in determine the character:

* character of discharge will be based on in-service records and activities
* false pre-enlistment records will not be used as a basis
* fraudulent enlistment occurs when the member accepts pay or allowances; thus it becomes an in-service activity and may be considered in characterizing his discharge, even though he is not tried for the offense.

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 (NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCMNRs 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 relative error or injustice was committed, or 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 benefits or similar benefits that might have been received if reason for the discharge had been for the revised reason or had the upgraded service characterization.

ABCMR Record of Proceedings (cont)	 AR20170014754


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