ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170017208 APPLICANT REQUESTS: correction of the narrative reason for separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 did not know when he joined the military he had any legal issues with the Alaskan judicial system. He stated he had lost his DD Form 214 and his new wife obtained a copy of it and brought the error to his attention. The applicant states that Alaska court view states court case was from 1 January 1986, not 1985, 1984, 1983, 1982, etc. He stated when he joined he had nothing pending legally as far as he knew. 3. Review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 October 1985. b. On 11 March 1986, the applicant’s immediate commander counseled the applicant and informed him that he was being processed for administrative discharge from the Army, in accordance with Chapter 7, Army Regulation (AR) 635-200 (Enlisted Personnel) due to fraudulent entry. c. On 14 March 1986, the applicant was notified by immediate commander that action had been initiated under the provisions of Chapter 7, Section V, AR 635-200, to effect his separation from the service. The commander stated the reason for his action was the applicant's past criminal record and the fact that he had an outstanding warrant a. for his arrest in the state of Alaska, were not admitted by him in the initial processing for service to the Army. d. On 14 March 1986, the applicant acknowledged receipt of the separation action from the commander. He acknowledged that he would not be permitted to apply for reenlistment in the United States Army within 2 years of his separation. He further made the following elections: * he desired to consult with consulting counsel * he desired to obtain copies of documents that will be sent to the separation authority supporting the proposed separation * he did not desire to have a separation medical examination * he desired to make a written statement with or without documentation to the separation authority, dated 14 March 1986 e. In his statement, the applicant stated he felt like he had paid his debt to society when he was in Alaska. He stated he worked hard to put his past behind him and that being a Soldier gave him a reason to get up in the morning. The applicant stated he had been striving to accomplish many goals since his time in Alaska and he had been trying to establish a home for him and his family. He stated in his initial entry into the Army, he did not report his arrest because in 1982 when he tried to enlist he was automatically barred. He felt that if he could show his will and determination, he could truly be an asset to the Army. He felt he was a good Soldier and with time and seasoning he could become an excellent Soldier. He added that he was making arrangements to pay back the fine that he owed and that at the time of his arrest, he was young and foolish with very few positive influences in his life. He stated that with the right kind of support that he had been receiving since joining the Army there was nothing he couldn’t accomplish given the opportunity. f. Subsequent to this acknowledgement, his immediate commander initiated separation action against him. g. On 25 March 1986, the separation authority approved the discharge action and ordered the applicant separated with an entry level separation – uncharacterized. h. Orders 087-118, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK on 28 March 1986 reassigned him to the Army separation transition point for separation processing by authority of AR 635-200. i. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 31 March 1986 under the provisions of paragraph 7 of AR 635-200, by reason of fraudulent entry. His DD Form 214 shows he completed 6 months and 1 day of creditable active service. It also shows in: * item 24 (Character of Service) – Entry Level Status * 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. 5. In reaching its determination, the Board can consider the applicants’ petition in his service record in accordance with published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon a review of the circumstances and events that resulted in the administrative separation of the applicant, the Board found no error or injustice which would warrant making a change to the narrative reason for separation. The Board concluded that DD Form 214 accurately depicts the narrative reason for separation based upon the administrative separation documents in the service record. 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. 845 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) 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. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal 1. 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.