ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20170019570 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change the narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 17 October 1980, 26 May 1983, and 4 November 1988 * DA Form 2-1 (Personnel Qualification Record – Part II) (PQR) * DA Form 2A (PQR – Part I) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he is requesting that his narrative reason for separation be changed on his DD Form 214. He in no way tried to deceive anyone when enlisting for active duty in the Regular Army (RA). This narrative reason has caused problems continuously when asked to provide proof of his military service. He would greatly appreciate the Board's consideration in this matter as it contradicts that he was able to serve 10 years honorably and then he was discharged for something that he had no control or part in. 3. The applicant provides his DA Form 2-1 and DA Form 2A, which show a history of his service, assignments, promotions/reductions, and foreign service. 4. A review of the applicant's service records shows: a. He enlisted in the Regular Army on 31 October 1980. a. b. His DD Form 1966 (Application for Enlistment Armed Forces of the United States), dated 31 October 1980, 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 DA Form 3286 (Statement for Enlistment), dated 26 May 1983, shows he understood should he make any material omission or misstatement of fact in connection with any enlistment documents he may be subject to early separation. d. The applicant reenlisted on 26 May 1983 and 4 November 1988. e. He served in Germany from 29 December 1988 to 28 August 1990. f. On 16 March 1989, a Department of Defense – Defense Investigative Service excerpt reflects the applicant was convicted in two cases and was sentenced to 5 years in state prison in Alabama and the latter was suspended to 5 years of probation. He was discharged from probation on 10 April 1984. g. His record is void of a separation packet available for the Board to review. However, his record contains a separation authority approval, dated 18 July 1990, which states he was ordered discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), chapter 7-17 (Incident or Fraudulent Entry). h. The applicant was discharged from active duty on 29 August 1990, under the provisions of AR 635-200, paragraph 7-17(b)(1) for fraudulent entry. His DD Form 214 shows he completed 9 years, 10 months and 13 days of active military service. It also shows in: * item 26 (Separation Code), JDA * item 27 (Reentry (RE) Code), 3 * item 28 (Narrative Reason for Separation), Fraudulent Entry 5. The applicant applied to the Army Discharge Review Board (ADRB) and on 19 January 1995, the ADRB informed him that after careful consideration, the ADRB determined he was properly and equitably discharged. Accordingly, his request to change the narrative reason for separation was denied. 6. By regulation: 1. a. AR 635-200 paragraph 7-17 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. b. AR 601-210 (Personnel Procurement Regular Army Enlistment Program) prescribes eligibility criteria governing enlistment into the RA from civilian life of persons with or without prior service. c. AR 635-5 (Personnel Separations - Separation Documents), Soldiers separated under the provisions of AR 635-200 for fraudulent entry are assigned separation code “JDA.” This separation code has a corresponding RE code of 3. 7. 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, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board concluded that the current information on the applicant’s DD Form 214 accurately depicts the facts and circumstances which led to his discharge. The Board found no 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. 1535874 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) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor. 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. 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. 3. AR 601-210 (Personnel Procurement Regular Army Enlistment Program) paragraph 3-3 states all disqualifications must be revealed by prior service personnel. It further states service applicants must list all Article 15's, courts-martial convictions, and time lost during all periods of previous service. It prescribes eligibility criteria governing enlistment into the RA from civilian life of persons with or without prior service. 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. The SPD code JDA is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, paragraph 7-17b, due for fraudulent entry. 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 1. 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.