ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20170019795 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the Unites States Report of Transfer or Discharge) * National Personnel Records Center (NPRC) 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 that when he was 13 years old, he was convicted of three non- violent offenses that included criminal damage to property, auto theft, and truancy from school. Being a juvenile, his record was sealed by Illinois law so he did not disclose these offenses when he enlisted. As a result, these charges should not have been used against him for discharge due to fraudulent entry. 3. The applicant provides a letter from NPRC, dated 12 April 2017, which shows they provided the applicant a copy of his DD Form 214. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 26 February 1970. b. In connection with his enlistment, he completed a DD Form 398 (Statement of Personal History), dated 24 February 1970, which shows the applicant had never been detained, held, arrested, indicted or summoned into court as a defendant in a criminal proceeding, or convicted, fined, or imprisoned or placed on probation, or ever ordered to a. deposit bail or collateral for the violation of any law, police regulation or ordinance (excluding minor traffic violations for which a fine or forfeiture of $25, or less was imposed). c. He was absent without leave (AWOL) from 23 May 1970 to 2 June 1970 and from 15 June 1970 to 1 December 1970. He was dropped from the rolls for desertion on 16 July 1970. d. The immediate commander notified the applicant of his intent to initiate separation action against him. The notification memorandum is not available. However, on 29 January 1971, after consulting with legal counsel, the applicant acknowledged notification of the basis for the contemplated action to accomplish his separation for fraudulent entry under the provisions of Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)). He waived a hearing before a board of officers, did not submit written statements in his own behalf, and waived representation by qualified military counsel. He understood: * the time necessary to allow the right of board appearance may be prolonged and that if the board recommends discharge, he would receive no pay or allowances for that period * if an Undesirable Discharge is issued that it would be under conditions other than honorable * he may be deprived of many or all rights as a veteran both under Federal and State laws * he may expect to encounter substantial prejudice in civil life in situations where the type of service rendered in any branch of the Armed Forces or the type of discharge received may have a bearing * he may, up until the date the discharge authority orders, withdraw his waiver and request that a board of officers hear his case e. On 2 February 1971, his immediate commander recommended approval of the initiation of separation proceedings under the provisions of paragraph 27, section V, AR 635-206. He stated due to repeated periods of AWOL, resistance to authority and regulations, and a pattern of behavior which rendered the applicant a complete loss to the service, the command had discovered that prior to enlistment, he was convicted of theft and was sentenced to a term of probation for 2 years. f. On 18 February 1971, consistent with the chain of command recommendations, the separation authority approved the discharge request under the provisions of AR 635-206. He directed the applicant receive an Undesirable Discharge Certificate. g. The applicant was discharged on 19 March 1971 under the provisions of section V, AR 635-206 for fraudulent entry, with an under conditions other than a. honorable discharge. His DD Form 214 shows he had 232 days lost. It also shows he was awarded or authorized the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). 5. By regulation, members will be considered for discharge if concealment of any fact, circumstances, or condition that existed prior to entry which would have made the individual ineligible for acceptance, other than concealment of minority or true name. Normally an undesirable discharge is considered appropriate unless the particular circumstances of the case warrant an honorable or general discharge. 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 found the relief was not warranted. Based upon the short term of service completed prior to multiple, lengthy AWOL offenses the Board concluded that the character of service received at the time of discharge was appropriate. 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 635-206, (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 27, Section V (Concealment of Other Disqualifications) states members will be considered for discharge if concealment of any fact, circumstances, or condition that existed prior to entry which would have made the individual ineligible for acceptance, other than concealment of minority or true name. b. Paragraph 30, Section V (Character of Discharge) states normally an individual discharged under this section will be given an undesirable discharge unless the particular circumstances of the case warrant an honorable or general discharge. The following factors will be considered in determine the character: * character of discharge will be based on in-service records and activities * false pre-enlistment records will not be used as a basis * fraudulent enlistment occurs when the member accepts pay or allowances; thus it becomes an in-service activity and may be considered in characterizing his discharge, even though he is not tried for the offense. 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 (NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCMNRs 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 relative error or injustice was committed, or 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 1. promotions, and payment of past medical benefits or similar benefits that might have been received if reason for the discharge had been for the revised reason or had the upgraded service characterization.