ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20180016876 APPLICANT REQUESTS: The applicant requests that her uncharacterized discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 requests an upgrade to her discharge because she felt she was forthcoming with her recruiter and the Army about her criminal record. Her recruiter met with her Probation Officer and a judge to obtain the sealing of her record so she could reenlist. She was told that her record was no longer there and it was like nothing happened. She was unaware that she was not getting an honorable discharge. 3. The applicant enlisted in the Army Reserve on 2 July 1982 for 6 years. Her DD Form 1966 (Application for Enlistment Armed Forces of the United States), dated 31 October 1980, reflects he checked off the "NO" boxes which pertained to questions about her background data and involvement with police or judicial authorities. It included questions about drugs, alcohol, mental issues, arrests, probation, parole, and/or court actions. She certified that the information given in this document was true, complete and correct to the best of her knowledge and belief. She understood that if any of the information was knowingly false or incorrect she could be tried in a civilian or military court and could receive a less than honorable discharge which could affect her future employment opportunities. 4. On 4 November 1982, the Defense Investigative Service, Personnel Investigations Center sent a records check on the applicant which found the following charges: a. on 18 May 1979 for Larceny less $100.00, charge was dismissed and applicant had to pay court fees. b. on 21 September 1979 for Idle and Disorderly Person (IDP), charge was dismissed and applicant had to pay court fees. c. on 21 November 1979 for Larceny Less $100.00, found not guilty. d. on 06 March 1981 for Wanton Destruction to Personal Property (WDPP) and IDP, applicant was found guilty of WDPP with a suspended sentence, and found not guilty of IDP. e. on 12 November 1981 for Larceny for more than $100.0 and Conspiracy to commit Larceny, case was suspended due to drug program. 5. On 4 January 1983, the applicant was notified by her immediate commander, he was initiating action to separate her under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 7 paragraph 7-17, for Fraudulent Entry. The applicant spoke with counsel and acknowledged she understood her available rights. 6. On 6 January 1983 the applicant wrote a sworn statement stating that she had informed her recruiters about her criminal background but they told her not to worry about it. 7. On 10 January 1983, the applicant’s immediate commander recommended her for discharge stating that the applicant declared there was recruiter connivance. 8. On 19 January 1983, the appropriate authority approved the recommendation for discharge of the applicant and directed she be furnished an entry level separation. 9. On 26 January 1983, the applicant was discharged accordingly. Her DD Form 214 shows that she completed 3 months and 12 days of net active service. She is authorized the marksmanship badge for the M-16 rifle. 10. Army Regulation (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. 11. The applicant records shows she joined the Army Reserve without annotating on required military documents that she had involvement with the judicial system; however, she provided a sworn statements stating that she had informed her recruiter of her criminal history and she was informed not to worry about it. 12. 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: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. Furthermore, the applicant’s record supports the narrative reason code of “Fraudulent Entry,” as the applicant fraudulently attested that she had no prior record when she signed her enlistment contract dated 02 April 1982. As such, her DD Form 214 properly shows her service as uncharacterized, with a proper narrative reason. 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. X 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. 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//