ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20190000605 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20050006352 on 22 December 2005. Specifically, he requests: a. An upgrade of his under honorable conditions (general) discharge; and b. Correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he served on active duty for 11 months and his service was creditable for that period of time. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) and third-party statement * DD Form 214, for the period ending 16 June 1964 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20050006352 on 22 December 2005. 2. The applicant states he was discharged under Army Regulation 635-206 (Misconduct – (Fraudulent Entry, Conviction by Civil Court, [Absent Without Leave] AWOL, Desertion)) for fraudulent enlistment. He notes he attached a letter from a third- party that clearly states he was never providing support to his wife's kids from a previous marriage. He did not enlist under fraudulent conditions, he only wanted to serve his country. 3. On a provided VA Statement in Support of Claim, the applicant contends: a. He was young and inexperienced and scared when he signed the discharge letter on 22 May 1964. He was under extreme duress when he signed the papers. His a. commander, first sergeant, and 2 military police (MP) officers were threating to send him to [the U.S. Disciplinary Barracks at Fort Leavenworth if he didn't sign the discharge paperwork. He had no legal representation present and was scared that his life was over. All the documents were signed under duress. b. At no time in the 11 months while he was in the Army was he responsible for the support of his three stepchildren. He only had a sixth grade education and didn’t understand all of the legal proceedings that were going on concerning his discharge. 4. The applicant enlisted in the Regular Army on 16 July 1963, for a period of 3 years. At the time of his enlistment, he signed a DD Form 4 (Enlistment Record – Armed Forces of the United States), which stated he had one dependent (a spouse). 5. The applicant's spouse personally appeared before a judge on 14 January 1964, in Parker, County, Texas; through sworn testimony, she stated she was receiving $95.20 per month from her husband, and that amount was not enough to support her and her three children. She stated she was not eligible to receive financial assistance from any state or federal agency because of the income she was receiving from his military pay, and his discharge from the Army was the only remedy to her hardship. 6. The applicant's commander was notified of the applicant's spouse's court testimony. The applicant's commander notified him that he was being recommended for discharge under the provisions of Army Regulation 635-206, for fraudulent enlistment, and that since an undesirable discharge may be issued, the commander informed him of his rights and privileges under law. 7. The applicant acknowledged receipt of the proposed separation memorandum. He acknowledge that he had been advised him of the basis for the contemplated separation action and of his right to be represented by counsel at a hearing. He waived his right to have his case considered by a board of officers. The commander noted that the applicant's conduct was excellent and his efficiency was good during his 10-month enlistment period. 8. The applicant submitted a statement in his behalf, wherein he contended that while being interviewed by a recruiter, he explained to the recruiter that he had a wife and three stepchildren who were dependent on him for support. This fact was overlooked and he was sworn into the U.S. Army. He erroneously signed a form claiming only his wife as a dependent. Since being married on 21 May 1962, he has supported his wife and stepchildren. 9. The applicant was discharged on 16 June 1964, under the provisions of Army Regulation 635-206, by reason of fraudulent entry. The DD Form 214 he was issued confirms his service was characterized as under honorable conditions. Additionally, his DD Form 214 contains the following statement in item 32 (Remarks): "Creditable Service for this Period Not Authorized." The applicant authenticated this document with 1. his signature indicating his acknowledgment/understand of the administrative data contained therein. 10. The applicant provides a third-party statement from a woman, of unknown relationship to the applicant, who contends the applicant never provided support to his stepchildren, because they were provided for by their biological father since he was their primary caregiver. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the record and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the applicant’s statement and additional evidence, noted that the commander stated his conduct and efficiency were good during his enlistment, considered the length of his period of service before discharge and determined that clemency was warranted by recognizing his service as creditable. 2. After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 16 June 1964 to show creditable service for the entire period of his service. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of 1. the application that pertains to upgrading the characterization of his discharge under honorable conditions. 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 provides that 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. 3. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). This regulation provided for the elimination of enlisted personnel when it was determined that they had enlisted under fraudulent circumstances. An undesirable discharge was normally considered appropriate. This regulation provides that the discharge of an individual suspected of fraudulent entry will not be ordered prior to complete verification of the facts concerning the alleged concealment, including a thorough examination of pertinent records prepared at time of, or prior to, entry into the Army and, if appropriate, records of draft boards regarding statements or admissions made by the person concerned. 4. Department of Defense (DoD) Publication 7000.14-R (Financial Management Regulation) (DoD FMR), Volume 7A, Chapter 1, currently in effect, prescribes the criteria for determining creditable service for military members; provides examples for computing valid creditable service; states periods of service that are not creditable for pay purposes; cites conditions for the payment of military pay entitlements; explains the computation of leave and conditions for leave accrual; and provides for situations where enlistments are not valid. DoD FMR, Volume 7A, Chapter 1, subparagraph 010202 (Service Not Creditable) provides that service is not considered creditable time served if an enlistment is terminated, voided, or invalidated as fraudulent.