IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20190006158 APPLICANT REQUESTS: The applicant requests, in effect: * to change the separation authority and narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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 (ABCMR) 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 his DD Form 214 lists his character of service as honorable but has the fraudulent entry listed as the narrative reason for separation. His service was honorable. He called the Veterans Administration (VA) home loan office and they stated he was ineligible. 3. On 13 March 1997, the applicant enlisted in the Regular Army for a period of 4 years. 4. His record shows he neglected to list his entire arrest record on his Standard Form 86 (Questionnaire for National Security Positions). 5. On 16 October 1997, an Entrance National Agency Check (ENTNAC) results memorandum shows the Brigade Legal Office: a. Attached correspondence pertaining to the applicant for review by his commander for appropriate action under the provisions of Army Regulation (AR) 635- 200 (Personnel Separations), paragraph 7-17. b. The applicant neglected to list his entire arrest record on his enlistment documents (SF 86). The Brigade Legal Office highlighted his 17 omissions. 6. The applicant’s record contains: a. A self-written statement, wherein, he states in pertinent part, he reported 15 of the charges to his recruiter. The two that were not mentioned/reported to his recruiter were the criminal sexual conduct and driving after his license was suspended. b. Letters of support and statements that state, in pertinent part, what happened between the applicant and his sister was a mistake; they were both young and did not know any better. At the time she (his sister) was eight (8) and now she is 14; she has forgiven him because he is a good person. The applicant’s mother stated her husband had just returned from Africa from the war and was very upset; her husband said the applicant may have done something sexually to his sister. His sister was sent to the hospital and the findings were that she had not been touched. She told the applicant to tell the authorities he was wrong, so he did that. The applicant was sentenced to jail and served his time. He is a young man that made some mistakes and served time. The applicant is respectful, dedicated to duty, and trustworthy. 7. On 20 October 1997, he was counseled for being in violation of AR 635-200, chapter 7, paragraph 7-17, for fraudulent enlistment. The counseling stated that the results of information found during his background investigation were derogatory and he was subject to separation action. The applicant concurred with the counseling. 8. On 24 October 1997, the applicant’s commander notified him that he was initiating separation action against him under the provisions of paragraph 7-17, AR 635-200 due to fraudulent enlistment on his enlistment documents. The specific factual reason(s) for the separation action was based on an ENTNAC investigation that revealed the applicant failed to list [17] previous arrests, which included the felony of criminal sexual conduct. The applicant was charged with two counts of criminal sexual conduct; pled guilty to count 1; and he was ordered to serve 6 months in the workhouse prior to treatment and to receive treatment; and no contact with the victim. 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. b. Subsequent to this counseling, he elected to submit a statement in his own behalf; and stated, in pertinent part, he joined the Army to support his family and to make a career out of it. He wanted to be a part of an elite force. He is a humble person and brings to the Army hard work ethics, leadership skills, and supervisory skills. He is a great asset to the Army or any force for that matter. c. His chain of command recommended approval of the separation action, and further recommended his service be characterized as honorable. d. The separation authority approved his discharge and directed his service be characterized as honorable. 9. On 1 December 1997, the applicant was honorably discharged under the provisions of AR 635-200, Chapter 7, Section V, by reason of fraudulent entry. He completed 8 months and 19 days of net active service. 10. 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. 11. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 12. In regards to the applicant's request for a personal appearance, Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 13. In regards to the applicant requesting an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, his record of arrests, his security questionnaire, the records of counseling, the separation packet to include his statement and the reason for his separation. Based on a preponderance of evidence, the Board found insufficient evidence to determine that the narrative reason for his separation and separation code were not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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 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. 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. 4. Army Regulation 15-185 (ABCMR), states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The regulation states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20190006158 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006158 7 ABCMR Record of Proceedings (cont) AR20190006158 6