ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 October 2019 DOCKET NUMBER: AR20170017033 APPLICANT REQUESTS: his character of service changed to reflect he was discharged honorably APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Disposition Form * Sworn Statement 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, in effect, he is in need of VA medical benefits. His recruiter had full knowledge of his criminal background, as well has his mental state. 3. The applicant provides: a. Sworn statement, dated 17 December 1981, which reflects the following: * He was informed by his commanding officer that he was being questioned about possible fraudulent enlistment/recruiter involvement of which he is accused or suspected, and which may result in discharge or voidance of his enlistment * He understood he had the right to remain silent and that any statement he made may be used as evidence against him in a trial by court-martial * He understood he had the right to consult with counsel and to have counsel present with him during questioning and that if he decided to answer without having counsel present, he may stop answering questions at any time * He elected not to receive counsel and made a statement on his own behalf b. Disposition Form, dated 2 December 1981, submitted by his commanding officer, requesting documentation for chapter 14, AR 635-200 (Fraudulent Enlistment) be initiated on the applicant for being a self-admitted fraudulent enlistee in the U.S. Army. 4. A review of the applicant’s service record shows: a. The complete facts and circumstances surrounding the applicant’s military service are not available to the Board for review. b. He enlisted in the Regular Army on 4 November 1981. c. His DD Form 214 shows he was discharged on 15 January 1982, under the provisions of AR 635-200, paragraph 14, section II, for misconduct – fraudulent entry, with his service characterized as NA. 5. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 6. AR 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. 7. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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 for consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant's statement regarding the fraudulent enlistment and the documents in the separation packet. The Board found insufficient evidence to find that the reason for the applicant's separation was in error. Based on a preponderance of evidence, the Board agreed that the absence of a discharge characterization was warranted as a result of his prior civilian infractions and not unjust. 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. 1/6/2020 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 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. Paragraph 3-7b 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. Paragraph 7-17 states a 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. A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention. Soldiers separated under this chapter may be awarded an honorable discharge, a general discharge, or a discharge under other than honorable conditions. If in an entry-level status, the characterization of service will be uncharacterized. d. Chapter 14, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A general discharge was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 3. AR 635-5, paragraph 2-7d, states when members are released from custody and control of the Army because of a void or voided enlistment, instructions in paragraph 2-8 will apply except as follows: * Item 9: Enter “NA” * Item 12c: Enter a zero in the year, month, and day blocks * Item 18: Enter, “Time served is not creditable for promotion or longevity.” * Item 23: Enter, “Release from Custody and Control of the Army.” * Item 24: Enter “NA” 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. //NOTHING FOLLOWS//