ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 May 2019

	DOCKET NUMBER:  AR20170019025


APPLICANT REQUESTS:  correction of his DD Form 214 (Report of Separation from Active Duty) to change the uncharacterized discharge and narrative reason for separation.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 4-1 (Enlistment or Reenlistment Agreement – Armed Forces of the United States)
* Standard Form (SF) 88 (Report of Medical Examination)
* DA Form 2-1 (Personnel Qualification Record)
* DD Form 214
* Army Review Boards Agency (ARBA) Letter

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. On May of 1976 his brother and he went to join the Army Volunteer for Buddy Buddy Program and filled out the forms at the recruiter station.  The recruiter asked them both if they had ever been convicted of a crime.  The applicant said yes, and the recruiter told him he did not have to put it on the paperwork, so he did not put it down on the paperwork.  So he figured it was not necessary, because he figured the recruiter knew best.  He thought since it was peacetime it was not necessary.  So they were both wrong and it was not done intentionally. He is sorry for his mistake because he got his medical records and found out he had defective vision and defective low frequency loss of hearing and no one told him while he was on active duty.  This was while under gun or rifle fire and grenades outburst that contributed to ringing in his ears.
   b. He is requesting the Board to consider him some type of health care to see a doctor at the Department of Veterans Affairs Health System.  He is sending his medical records to verify that he was having severe hearing loss due to the heavy artillery sounds.  Due to his release in September of 1976, he was really hurt and turned to alcohol and drugs and was homeless because he was proud to serve in the military.  Now he is on the right path thanks to God and his family for being in his life.

3.  The applicant provides:

* his medical records, dated 19 May 1976, that show he had defective distant vision and low frequency hearing loss
* ARBA letter, dated 23 January 2015 that reflects his military records were requested from the National Archives and Records Administration (NARA) and they could not make a decision on his case at that time

4.  A review of the applicant's service records shows:

	a.  He enlisted in the Regular Army (RA) on 26 May 1976.

	b.  His DD Form 1966 (Application for Enlistment Armed Forces of the United States), dated 18 May 1976, reflects he checked off the "NO" boxes which pertained to questions about his background data and involvement with police or judicial authorities.  It included questions about drugs, alcohol, mental issues, arrests, probation, parole and/or court actions.  He certified that the information given in this document was true, complete and correct to the best of his knowledge and belief.  He understood that if any of the information was knowingly false or incorrect he could be tried in a civilian or military court and could receive a less than honorable discharge which could affect his future employment opportunities.

	c.  His DD Form 1584 (National Agency Check Request), dated 27 May 1976, shows he was arrested at 17 years of age for shoplifting on 13 March 1973 .

	d.  His record is void of a separation packet available for the Board to review.  However, his record contains a separation authority approval memorandum, dated 9 September 1976, which states he was ordered discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), chapter 14 (Misconduct Fraudulent Entry).  His enlistment was voided as there was indication of recruiter connivance.  

	e.  The applicant was discharged from active duty on 21 September 1976, under the provisions of AR 635-200, chapter 14 by reason of fraudulent entry.  His DD Form 214 character of service as DNA (Do Not Assign) and Separation Orders Number 83-124 shows Separation Designator Code of YKG.

5.  By regulation fraudulent entry is the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection.

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 facts and circumstances leading to discharge and the separation being initiated within the first 180 days of military service, the Board concluded that both the characterization of service and the narrative reason for separation currently depicted on the applicant’s DD Form 214 accurately reflects those facts and circumstances leading to discharge.  For that reason, the Board found no evidence of an error or injustice which would warrant making a change to the 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14-5 states fraudulent entry is the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection.

a.  Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. The honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude.  Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks.

b.  Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  False pre-enlistment or pre-induction records will not be used as a basis for characterizing a period of service.

c.  Paragraph 1-9f (Undesirable Discharge) states an undesirable discharge is an administrative separation from  the service under conditions other than honorable.  It may be issued for unfitness, misconduct, homosexuality, or for security reasons.

3.  AR 601-210 (Personnel Procurement Regular Army Enlistment Program) paragraph 3-9 states all disqualifications must be revealed by applicants.  It further states applicants will be advised that all arrests, convictions, or adverse juvenile
adjudications are required to be revealed regardless of whether a waiver would be required under this regulation.  It prescribes eligibility criteria governing the
enlistment from civilian life of persons with or without prior service into the RA.

4.  AR 635-5 (Personnel Separations - Separation Documents) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.

5.  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.

ABCMR Record of Proceedings (cont)	 AR20170019025


4


1