ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20180010776 APPLICANT REQUESTS: * upgrade from under honorable conditions general to honorable * a personal appearance before the board. 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, he feels the discharge was incorrect because he told his recruiter about the traffic violation before enlisting. The recruiter stated that the traffic violation was not an issue. While he served, he did his job and had serval letters that showed his service was honorable. The only reason he received a general discharge is from the fraudulent enlistment was because of the traffic violation. Please consider his upgrade for his time in the military. He has evidence that proves he did a great job. 3. A review of the applicant’s service records shows: a. He enlisted in to the Regular Army on 23 March 1985. b. He accepted nonjudicial punishment under Article 15 on/for: * 28 October 1985 for disrespect * 18 February 1986 for disobeying a lawful order c. On 31 January 1986 the applicant's immediate commander recommended him for elimination from military service under the provisions of Army Regulation (AR) 635-200 a. (Enlisted Personnel – Personnel Separations), Chapter 7, for fraudulent enlistment for concealment of other disqualifications. d. The applicant consulted with counsel (no date recorded), and acknowledged receipt of the notification. He was advised of the possible effects of a less than fully honorable discharge and the procedures and rights that were available to him. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. * He requested consideration of his case by a board of officers * He requested personal appearance before a board of officers * Statement in his own behalf submitted * He request consulting counsel and representation by counsel * He understand that my willful failure to appear before the board of officers by absenting himself without leave will constitute a waiver of his rights to personal appearance before the board e. On 13 February 1986, the applicant's battalion commander recommended approval of discharge based on concealment of his past civil offenses that reflect instability of his character and is not in the best interest of the United States Army. In addition, his performance has been below average to substandard. f. The separation authority approved the applicant's discharge on 18 February 1986, under the provisions of AR 635-200, chapter 7 for fraudulent enlistment and directed the applicant be issued a General Discharge Certificate. g. The applicant was discharged from the Army on 26 February 1986. His DD Form 214 (Report of Separation from Active Duty) confirms his service was characterized as "Under Honorable Conditions." He served, 10 months, and 18 days of creditable active military service. 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. By regulation, (AR 635-200), chapter 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. 2. 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, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, his record of service, two instances of non-judicial punishment, the reason for his separation and whether clemency applied. The Board found the applicant’s separation was for fraudulent enlistment and although the applicant states it’s for a traffic violation, the Board found there was insufficient amount of detail as to the type of traffic violation withheld. The Board found that the applicant had a short term of service prior to the discharge and during that service there was some misconduct; the applicant provided no evidence if post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board concluded that the applicant receiving a General Discharge appeared fair without error any injustice. For that reason, the Board recommended to deny the applicant’s upgrade request at this time. If the applicant remains interested in a discharge upgrade, the Board wished to advised the applicant to provide greater detail concerning the circumstances of the prior violation(s) at the time of enlistment for any future Board to consider. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. 8/13/2019 X CHAIRPERSON Signed by: 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 policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 7 of this regulation provides the authority, criteria, and procedures for the separation of soldiers because of minority, erroneous enlistment, induction or extension of enlistment, defective enlistment agreement, and fraudulent entry. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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. Only the honorable characterization may be awarded a soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. 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. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. a. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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.