ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20180013157 APPLICANT REQUESTS: an update to his DD Form 214 (Report of Separation from Active Duty) to reflect time served from 24 September 1976 to 17 May 1977 and to change his character of service (item 9e) to honorable. 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 that he is requesting that his DD Form 214 reflect time served from 24 September 1976 to 17 May 1977 and to have his character of service (item 9e) changed to honorable. He states that he made the recruiter aware that he had a criminal record under a different name, which was his father’s last name. The recruiter enlisted him knowing that he had a criminal record and that he has a witness to testify to this fact if necessary who enlisted on the same day that he did. He believes the record to be in error or unjust because the recruiter enlisted him knowing that he had a criminal record, yet he was discharged for fraudulent entry. 3. A review of the applicant’s service record show the following: a. A court judgement, dated 8 November 1971, from the District of Harris County, Texas, shows the applicant was charged with the unlawful possession of a bomb, a felony, as charged in the second count of the indictment. The applicant was a juvenile and pleaded guilty to the charge contained in the indictment. b. On March 20, 1974, court documents show that the District of Harris County, Texas court case concerning the unlawful possession of a bomb, a felony, as charged in the second count of the indictment was dismissed by the court. a. c. On 15 September 1976, a criminal background check was conducted by the Sheriff’s Office of Houston, Texas and returned with negative results. d. He enlisted in the Regular Army on 24 September 1976. e. He served in Germany from 8 June 1977 to 21 August 1977. f. On 20 January 1977, the applicant completed DD Form 2823 (Sworn Statement) which stated that he was interviewed by the Air Force recruiter in Houston, Texas and related to the recruiter that he had a police record and that at the time of the incident he was using his father’s last name “X___”. Sergeant (SGT) X___, told him he could not recruit him because of the police record and also because he had failed the Army Physical Qualification Test the same day. Approximately 5 days later, SGT X___, called the applicant’s mom to have him return to the recruiting station. SGT  X___ introduced him to sergeant first class (SFC) X___ who said he did not want to hear about his criminal record and that he had already heard about it from SGT X___. SFC X___ told him to not say anything about it and no one would ever know. The applicant’s brother was recruited on the same day who was a witness to the event and also his mother who spoke to the recruiter and stated she did not want the applicant to get into trouble. He further states that he went along with what the recruiter said because the recruiter told him that at the time of the incident he was a juvenile and that the juvenile record did not count so in fact the applicant did not have a record. He further states, he was not trying to hide his criminal record and told the recruiter about it. g. On 11 February 1977, his immediate commander submitted a memorandum concerning the separation of the applicant under the provisions of chapter 14, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) for felony conviction. He recommended that the applicant be retained in the service. h. A memorandum for record, dated 11 February 1977, states that the Harris County Sheriff Department, concerning the arrest record of the applicant, stated that the applicant had agreed to a judgment in his felony arrest, in District Court and that the case is filed as a felony conviction. i. On 14 February 1977, his immediate commander submitted a memorandum for fraudulent entry concerning the applicant. The memorandum outlined procedures for handling possible involuntary separation or voidance of contract as the applicant concealed this information at the time of entry into the military service. j. On 15 February 1977, his immediate commander using DA Form 2496 (Disposition Form), advised the applicant of his rights under Article 31, UCMJ. The applicant claimed recruiter connivance concerning the alleged fraudulent entry under chapter 14, paragraph 14-4 of AR 635-200. The applicant acknowledge receipt of his rights and elected to make a statement and not seek legal counsel. He also was a. informed that his enlistment would be voided as outlined for fraudulent entry under chapter 14, by reason of recruiter connivance. k. On 23 February 1977, his immediate commander recommended immediate reenlistment upon voidance of his present enlistment contract. The commander’s reason for this action is due to the applicant’s recruiter led him to believe that his police record was not an important factor to be considered. l. On 28 February 1977, his intermediate commander recommended immediate reenlistment upon voidance of his present enlistment contract. m. On 25 March 1977, CID Form 94 (Agent’s Investigation Report) states that a certified copy of trial records was obtained concerning the applicant for the offense of injury to property and possession of a fire bomb. The applicant pleaded guilty to the charge of possession of a fire bomb and received a sentence of 10 years and a $1500 fine. The imposition of the sentence was suspended, and the applicant was placed on probation. It further states that no arrest record pertaining to the applicant at the city police department of Houston, Texas was found. On 20 March 1974, the applicant was released from probation. n. On 11 April 1977, his chain of command recommended immediate reenlistment upon voidance of his present enlistment contract. o. On 20 April 1977, the applicant requested to be considered for immediate enlistment upon voidance of contract. p. DA Form 2496 was submitted to the Commanding General for the approval of the immediate enlistment of the applicant upon voidance of contract in accordance with interim changes to AR 635-200 and AR 635-206 (Discharge Misconduct Fraudulent Entry, Conviction by Civil Court and Absences without leave or Desertion) as authorized in Department of the Army Message 301300z November 1976 and DA MSG 011359z December 1976. DA Form 2496 request was approved by the Commanding General. q. Order 138-93, dated 18 May 1977, discharge the applicant from active duty with an effective date of 17 May 1977. His DD Form 214 shows, that he was released from active duty on 17 May 1977 under the provisions of (item 9c) AR 635-200, chapter 14- 5c] for misconduct-fraudulent entry. His effective date of discharge (Item 9d) shows 17 May 1977. His character of service (Item 9e) shows [Not Applicable]. Also, (Item 9f) type of certificate issued is listed as none. It also shows he completed (Item 18d) 0 days, 0 months and 0 days of active duty service. r. He reenlisted in the Regular Army on 18 May 1977. s. On 23 June 1977, a letter to the Commanding General, stated that on a. 17 May 1977, the original enlistment contract of the applicant was voided due to recruiter connivance by not including a felony conviction and that the applicant was allowed to reenlist. The applicant was issued a DD Form 214 that stated “This period of service has been voided and is not creditable for consideration or longevity.” It was also requested that the applicant’s date of rank of 24 September 1976 be confirmed. t. On 3 August 1977, his immediate commander initiated action to discharge him under the provisions of AR 635-200, paragraph 5-37 (failure to demonstrate promotion potential). The reason for the immediate commander’s action are: * inability to adjust to the rigors and discipline of the service * experience in the service to include a fraudulent enlistment have resulted in a negative attitude toward the service * inability to adjust to current environment and negative attitude had been detrimental to both the unit and the applicant * disillusionment with military life made him unresponsive to his superiors resulting in non-productiveness u. On 3 August 1977, the applicant acknowledged notification of his immediate commanders intent to separate him under the provisions of AR 635-200, paragraph 5-37 (failure to demonstrate promotion potential). His immediate commander recommended approval for separation on the same date. v. On 4 August 1977, the separation authority approved separation under the provisions of AR 635-200, [paragraph 5] for separation for convenience of the government with the issuance of a Honorable Discharge Certificate (DA Form 256a). w. Orders 234-210, dated 22 August 1977, discharged the applicant from active duty service with an effective date of 22 August 1977 with the issuance of an [Honorable Discharge Certificate] (DD Form 256a). x. His second DD Form 214 shows that he was discharged from active duty on 22 August 1977. He was discharged under the provisions of AR 635-200, paragraph 5- 37 SPD JGH (Expeditious Discharge) with an honorable discharge. It also shows that he completed 3 months and 5 days of active duty service. He was awarded or authorized Expert-Marksmanship Qualification Badge (M16). 4. By regulation, AR 635-200, Chapter 14-5c states that procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Paragraph 3-7a (Honorable Discharge) states 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. 1. 5. By regulation, AR 635-200 (Personnel Separations-Enlisted Personnel), chapter 5 states this chapter sets forth the conditions under which enlisted personnel may be discharged, released from active duty or active duty training, or released from military control, for the convenience of the government. 6. AR 635-5 (Personnel Separations Separation Documents) provides guidance regarding completion of the DD Form 214. * Item 9c (authority and reason) enter statutory and or regulatory authority for separation and the SPD (AR 635-5-1 (Separation Program Designators) * Item 9d (effective date) enter effective date of discharge shown on separation orders, using six digit numerals. * Item 9e (character of service) enter in all capital letters. Authorized entries 1) Honorable 2) Under Honorable Conditions 3) Under other than honorable conditions 4) Dishonorable 5) To be determined 6) Not Applicable (for release from custody and control of the Army due to voidance of fraudulent enlistments. 7. By regulation (AR 635-5-1), Soldiers separating under the provisions of chapter 14 of AR 635-200 are assigned Separation Code YKG. The Narrative Reason for Separation associated with this chapter and separation Coder is "Misconduct-fraudulent entry." 8. AR 635-5-1 states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. 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. His initial period of service was voided due to a fraudulent enlistment. Regulatory guidance does not provide for the awarding of active duty service credit for voided enlistment periods, and therefore the request for a character of service upgrade for that DD Form 214 does not have merit. Based upon the preponderance of evidence, the Board determined there is insufficient evidence to grant relief. 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. 7/19/2019 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 (Active Duty Enlisted Administrative Separations), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 -5(c)(1) (concealment of conviction by civil court) of that regulation provides that an individual who concealed his conviction by civil court of a felonious offense normally will not be considered for retention. If information concerning the existence of a civil criminal record is required from the Federal Bureau of Investigation, the contact with the FBI must be made by HQDA. 3. AR 635-5 provides guidance regarding completion of the DD Form 214. * Item 9c (authority and reason) enter statutory and or regulatory authority for separation and the SPD (AR 635-5-1 (Separation Program Designators) * Item 9d (effective date) enter effective date of discharge shown on separation orders, using six digit numerals. * Item 9e (character of service) enter in all capital letters. Authorized entries 1) Honorable 2) Under Honorable Conditions 3) Under other than honorable conditions 4) Dishonorable 5) To be determined 6) Not Applicable (for release from custody and control of the Army due to voidance of fraudulent enlistments. 4. (AR 635-5-1), Soldiers separating under the provisions of chapter 10 of AR 635-200 are assigned Separation Code YKG. The Narrative Reason for Separation associated with this chapter and separation Coder is "Misconduct-fraudulent entry." 1. 5. AR 635-5-1 states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 6. AR 635-200, chapter 5 states this chapter sets forth the conditions under which enlisted personnel may be discharged, released from active duty or active duty training, or released from military control, for the convenience of the government. 7. 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. //NOTHING FOLLOWS//