ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20180011233 APPLICANT REQUESTS: * an upgrade of his general discharge to honorable * change to narrative reason for separation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records) * DD Form 293 (Application for the Review of Discharge) * 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: a. At 17 years old he was a youthful offender and the judge told him that at the age of 21 his records would be sealed, and it would be like it never occurred. When he enlisted at the age of 21 he did not disclose his arrest history, because of his youthful offender status. b. He was first brought up for fraudulent enlistment and the case was dismissed in judicial court. Then a “chapter 11” for lack of motivation was dismissed. He became depressed and never received treatment. He was stripped of his security clearance and they were contemplating further court options, so he decided to get out on hardship. 3. On 12 October 1983, in connection with his enlistment in the U.S. Army Delayed Entry Program, the applicant certified and completed a Record of Military Processing – Armed Forces of the United States, wherein he was asked if he had ever been arrested, charged, cited (including traffic violations) or held by any law-enforcement or juvenile authorities in the United States or in a foreign country regardless of whether the citation or charge was dropped or dismissed or you were found not guilty? He initialed the box indicating “no”. 4. On 7 February 1984, he enlisted in the Regular Army for a period of 3 years. He did not complete training requirements and was not awarded a military occupational specialty. 5. On 10 May 1984, pursuant to the provisions of Army Regulation (AR) 604-5, Department of the Army Personnel Security Program Regulation, the applicant was notified by an official from the Adjudications Division of their intent to deny his security clearance. a. This proposed action was based upon adjudicative application of reference 1b minimum personnel security standards to the following factors disclosed in his Department of Defense investigation dossier which were considered incompatible with the possession of a security clearance: (1) On 28 August 1980, the applicant was arrested and subsequently convicted of criminal sale of controlled substances. He was sentenced to 60 days confinement. (2) On 22 December 1980, the applicant was arrested for possession of stolen property and disorderly conduct. On a plea of guilty he received a conditional discharge. (3) On 31 March 1981, the applicant was arrested for burglary, criminal possession of stolen property, criminal possession of burglary tools and trespassing. He was convicted and sentenced to confinement for trespassing. (4) On 5 September 1982, the applicant was arrested for intent to fraudulently obtain transportation without permission and disorderly conduct. He was convicted of those charges. b. The letter was intended to offer him every reasonable opportunity to explain and/or refute the adverse information which was the basis for the action. His security clearance access was suspended until a final determination was made. c. If he elected to submit a statement and/or material in his behalf for consideration in the final adjudication, he was to indorse the letter back to the Headquarters of the Adjudication Division. This statement/material must contain substantiated explanation, refutation and/or mitigation of the factors upon which the determination was based sufficient to merit favorable adjudication. 6. On 25 May 1984, the City of New York, Department of Probation provided a letter to the Army stating: * on 27 August 1980, the applicant was placed on probation for a 5 year period as a youthful offender by Judge E in Bronx Supreme Court * during that time his mother died and he had minor problems adjusting; however, he responded well to probation supervision and reported as directed * the applicant enrolled in college in an attempt to change his life * the applicant’s favorable progress during supervision led to his early termination from probation on 3 August 1983 7. His record shows on: * 30 May 1984, the applicant’s commander indicated he had missed 3 consecutive days of training based on the revocation of his security clearance, and recommended he be re-classed * 1 June 1984, the applicant was counseled for failing to remain at his appointed place of duty; he had another Soldier fill out and leave an attendance slip for him; UCMJ action was recommended * 1 June 1984, the applicant accepted non-judicial punishment for failing to remain at his appointed place of duty; he elected not to appeal * 19 June 1984, the applicant was counseled on his appearance, attitude, and his desires to re-class; the counseling also stated he was charged for receiving stolen property in 1980; he was found not guilty of the offense 8. On 25 June 1984, the applicant submitted a statement in his own behalf for consideration in deciding whether to grant him a security clearance. He addressed all 4 matters listed in Adjudication Division’s letter of intent to deny his security clearance. 9. On 3 August 1984, the applicant responded to his commander’s proposed chapter 11 separation action against him and stated that: a. The actions by his commander were contrary to the mandates of AR 635-200 (Personnel Separations – Enlisted Personnel). In the commander’s notification letter to him, he stated that he has initiated this action because the applicant "lack motivation." There is no evidence in support of this assertion at any other place in the elimination packet (not available). The only derogatory information contained in the packet is a summarized Article 15 (non-judicial punishment) he received in early June. The sole basis for the action by his commander was the fact that his security clearance had been suspended. This was not an appropriate basis for a chapter 11 discharge action. Nothing in AR 635-200 permits separation for a suspended security clearance. His appeal of the suspension was still pending. b. Paragraph 11-2, AR 635-200, provides the rationale for discharge under the Trainee Discharge Program. It states, separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, and failure to adapt to the military environment. 10. On 28 August 1984, the Chief of the Adjudications Division, U.S. Army Central Personnel Security Clearance Facility stated: a. The data furnished by the applicant was considered sufficient to merit favorable adjudication of his case. Accordingly, he was granted a “Secret” security clearance. Based on this action, a new DA Form 873 (Certificate of Clearance and/or Security Determination) authorizing the above clearance based on an Entrance National Agency Check completed on 24 January 1984 was forwarded. b. If any unfavorable personnel actions pertaining to the applicant had been taken or were pending as a result of the Adjudications Division’s previously declared intent to deny the applicant’s security clearance, he was directed to furnish a copy of the correspondence to his supporting personnel officer without delay. 11. On 27 September 1984, the applicant’s commander notified him that he was initiating separation action against him without an administrative board under the provisions of paragraph 7-17, AR 635-200 for fraudulent entry based on concealment of civil conviction. a. He consulted with legal counsel and he was advised of the basis for the contemplated separation action for fraudulent enlistment, its effects, and of the rights available to him. Subsequent to this counseling, he elected to submit a statement on his own behalf; however, it is not available. b. He indicated that he did not intend to appeal the civil conviction which was the basis for this separation action. c. His chain of command recommended approval of the separation action. d. The separation authority approved his discharge and directed the issuance of a General Discharge Certificate. 12. On 2 November 1984, the applicant was discharged accordingly under honorable conditions, based on fraudulent entry. He completed 8 months and 26 days of net active service. The applicant was not awarded a personal decoration. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 7-17 provides, in pertinent part, that 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. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel. 14. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and no mitigating circumstances for the misconduct. The Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. 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. 5/28/2019 ___________X________________ Chairperson 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 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 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 7-17 provides, in pertinent part, that 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. Some examples of fraudulent entry are concealment of conviction by civil court and concealment of record as a juvenile offender. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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 (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. a. 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 on the basis of 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. b. 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.