ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20180000192 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change: * his, character of service * his, separation code * his, reason for separation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 27 March 1989 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, that he was 26 years old and spent 5 and 3 /4 months in the service. He believes his First Sergeant was spiteful and had malicious intent by finding disorderly conduct which occurred in 10th grade when he was in high school. He was in the top 20 written and physical training and a sharp shooter in range training. 3. The applicant enlisted in the Regular Army on 1 November 1988. 4. The applicant’s service records contain the following: a. DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), showing he was pending nonjudicial punishment (NJP), for failing to go to his appointed place of duty on or about 4 February 1989, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). b. Extract of DD Form 1966/3, dated 1 November 1988, showing he failed to list his arrest for disorderly conduct and resisting arrest in Item 35. c. DA Form 2486 (Disposition Form), dated 7 March 1989, showing, his enlistment was fraudulent due to concealment of arrest record. d. Federal Bureau of Investigation (FBI), search results showing the applicant’s arrest record. 5. The applicant's immediate commander notified the applicant that he was initiating separation action against him in accordance with paragraph 7-17 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) due to fraudulent entry, on 14 March 1989. The commander stated he was recommending an entry level separation, and added that, the applicant had concealed arrest record on DD Form 1966/3 (contract) upon Enlistment in the United States Army. 6. The applicant waived his right to consult with legal counsel and was subsequently notified of contemplated action to separate him for fraudulent entry under AR 635-200 on 14 March 1989. He indicated that he understood the effects of any action taken by him in waiving his rights. 7. The applicant accepted nonjudicial punishment (NJP) on 16 March 1989, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for knowingly making false representations, that he had never been arrested, apprehended, charged, cited or held by Federal, State, military or other law enforcement or juvenile authorities, regardless of whether the citation was dropped or dismissed or he was found not guilty, enlist in the United States Army, when he in fact deliberately concealed that he was arrested on 2 July 1988 for Resisting Arrest, Obstructing Government Administration, Disorderly Conduct, and Harassment. 8. The applicant’s commander initiated separation actions against him for fraudulent entry under the provisions of paragraph 7-17 of AR 635-200, on 16 March 1989. 9. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 22 March 1989 and ordered the applicant be discharged with an uncharacterized discharge. 10. The applicant was discharged on 27 March 1989 the DD Form 214 he was issued shows, he was discharged under the provisions of paragraph 7-17 of AR 635-200, by reason of fraudulent entry and he completed 4 months, and 27 days of creditable active service. It also shows in: * item 24 (Character of Service) –“ Uncharacterized” * item 26 (Separation Code) - “JDA” * Item 28 (Narrative Reason for Separation) -“Fraudulent Entry” 11. He was issued a DD Form 215 (Correction to DD Form 214), on 19 September 1989 correcting the following: * Item 4a (Grade, Rate or Rank) - PFC * Item 4b (Pay Grade) E-3 * Item 12h (Effective Date of Pay Grade)- 880101/NOTHING FOLLOWS 12. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct, fraudulent enlistment, and separation during entry level status. 2. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000192 2 1