ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20180016217 APPLICANT REQUESTS: The applicant requests his other than honorable conditions (UOTHC) discharge be upgraded to honorable and his RE (Reentry) -Code, Separation Authority, Narrative Reason for Separation be corrected accordingly, as well as his pay grade to private (PV2/E2). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement 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 was discharged as a result from receiving a speeding ticket days prior to reporting to military entrance processing stations (MEPS) and basic combat training (BCT). He completed BCT and advanced individual training (AIT) and had no behavioral problems with his unit. His recruitment packet had already been submitted and approved prior to the speeding ticket being issued; he wasn’t given the opportunity to resolve the ticket and was separated instead. He did not withhold information concerning the ticket and was given a separation that reads “Fraudulent Entry”. 3. On 2 November 1979, the applicant enlisted in the Regular Army. 4. On 19 May 1980 he received non-judicial punishment (NJP) for disrespect to a commissioned officer. 5. On 5 February 1981, the applicant was advised, by his commander, he was being considered for separation from the United States Army under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) paragraph 14, for fraudulent entry into the service by concealment of a conviction by civil court for robbery, advised him of his rights, notified him as a result he may be separated under other than honorable conditions and requested he make a sworn statement as to the facts and circumstances concerning the robbery. 6. On 18 March 1981 the applicant made a sworn statement acknowledging seeing the report of Investigation and confirming the information contained was correct. When he first enlisted, he informed his recruiter of all of the charges; his recruiter wrote them down however, he did not see his recruiter annotate the information on the robbery. His recruiter told him, he was given a waiver on all of his charges and that everything was ok. He believed he should be retained in the Army. 7. On 11 June 1981, the applicant acknowledged being notified for the contemplated separation action against him; he was made aware of his available rights and consulted with legal counsel. 8. An undated document shows the commander recommended the applicant be eliminated under the provisions of AR 635-200 because of fraudulent entry. A physical examination was completed on 7 April 1981. 9. On 13 July 1981 the appropriate approval authority approved the recommendation for discharge of the applicant and directed he be reduced to the lowest grade and issued an under other than honorable conditions (UOTHC) discharge certificate. 10. On 4 August 1981 the applicant was discharged accordingly. He completed 1 year, 9 months, and 3 days of total active service. 11. The applicant states he was discharged as a result from receiving a speeding ticket days prior to reporting to MEPS and BCT. His recruitment packet had already been submitted and approved prior to the speeding ticket being issued; he wasn’t given the opportunity to resolve the ticket and was separated instead. The available evidence provides on 3 May 1979, he was arrested on a charge of burglary; however, a review of his enlistment records does show he received a speeding ticket prior to enlistment however a burglary charge was not listed. 12. AR 635-200 paragraph 7-17 states fraudulent entry is the procurement of an enlistment through any deliberate material misrepresentation, omission, or concealment of information which if known and considered by the Army at the time of enlistment; might have resulted in rejection. This includes all disqualifying information requiring a waiver. 13. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published 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. Furthermore, the applicant claims that his fraudulent enlistment discharge was only due to receiving a speeding ticket, but the record indicates that there were several other civil and military charges against him as well. 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 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), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. 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. b. Paragraph 7-17a (Concealment of conviction by civil court) stated a member who concealed his or her conviction by a civil court of a felonious offense normally will not be considered for retention. 3. Chapter 14 establishes policy and prescribes 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. (1) The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. (2) Paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. d. Chapter 1, paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 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. //NOTHING FOLLOWS//