ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 May 2019 DOCKET NUMBER: AR20170016948 APPLICANT REQUESTS: an upgrade to 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 that he regrets any and all unfortunate circumstances that lead to his current discharge. 3. Review of the applicant’s records shows: a. He enlisted in the Regular Army on 20 February 2002. b. On 14 March 2002, the applicant's immediate commander notified the applicant that he was initiating separation action against him in accordance with paragraph 7-17 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) due to fraudulent entry. The commander stated he was recommending an entry level separation, and added that: (1) The applicant had disclosed with a sworn statement during the Moment of Truth briefing that he had a car accident in 1999 and had his license taken away and that he was arrested in 2000 for driving while suspended. Verification revealed that he had six open traffic tickets and a mandatory court appearance in Municipal Court with tickets dated 23 May 2001 and 9 Aug 2001. (2) He also had a mandatory court appearance in This is a non-waivable disqualification for enlistment in accordance with the enlistment regulation. c. On 6 March 2002, he consulted with legal counsel was notified of contemplated action to separate him for fraudulent entry under AR 635-200. He indicated that he understood the effects of any action taken by him in waiving his rights. d. On 11 March 2002, the commander initiated separation against the applicant for fraudulent entry. e. On 14 March 2002, the separation authority approved the separation action and ordered the applicant discharged with an uncharacterized discharge. f. Orders 077-0362, issued by Headquarters, U.S. Army Maneuver Support Center and Fort Leonard Wood, MO on 18 March 2002 reassigned him to the Army Transition Point for separation processing on 19 March 2002, by authority of AR 635-200. g. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 19 March 2002 under the provisions of paragraph 7-17 of AR 635-200, by reason of fraudulent entry. His DD Form 214 shows he completed 1 month of creditable active service. It also shows in: * item 24 (Character of Service) – Uncharacterized * item 26 (Separation Code) – JDA 4. By regulation (AR 635-200), the Army considers a separation an entry-level separation if processing is initiated while a member is in an entry-level status. During the first 180 days of continuous active military service, a member's service is under review. a. When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other-than-honorable conditions discharge. A general discharge is not authorized. b. The entry-level separation is given regardless of the reason for separation. An uncharacterized discharge is neither positive nor negative; it is not "derogatory." An uncharacterized character of service is not meant to be a negative reflection of a Soldier’s military service. It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. a. 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 administrative separation of the applicant being initiated within the first 180 days of military service, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/8/2019 X CHAIRPERSON Signed by: 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 sets forth the basic authority for separation of enlisted personnel. a. Paragraph 7-17. Incident of fraudulent entry. Fraudulent entry is the procurement of an enlistment, re-enlistment, 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 re-enlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. However, the enlistment of a minor with false representation as to age and without proper consent will not in itself be considered a fraudulent enlistment. b. For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. An uncharacterized description of service was required for separation under this chapter. Chapter 3 describes the different types of characterization of service. It states an uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when: (1) Characterization under other than honorable condition is authorized under the reason for separation, and is (2) Warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. c. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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.