ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20190007613 APPLICANT REQUESTS: The applicant requests, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending 2 October 1973, to show an honorable character of service APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two DD Forms 214 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, his recruiter made a mistake in 1971. In addition, he argues his under honorable conditions character of service was supposed to be revised to honorable 6 months after his discharge. His current discharge is preventing him from obtaining future insurance at a reasonable rate. 3. The applicant's service records show: a. On 6 May 1971, the applicant's mother gave her written consent for the applicant to enlist into the Regular Army. On 13 May 1971, as part of the enlistment process, the applicant completed a DA Form 3286 (Statements for Enlistment (Parts I through V)). Under Part II (Statement of Law Violations and Previous Conditions); the applicant answered "No" to the below-listed questions and showed "None" where the form required specific instances arrests, charges, and adjudications to be listed: * Have you ever been arrested, cited, charged or held by Federal, State, County, City, or other law enforcement authorities or by juvenile, Court or Juvenile Probation Officials for any violation of any Federal Law, State Law, County or Municipal Law, Regulation or Ordinance? * Have you ever been convicted of a felony or any other offenses, or adjudicated a youthful or juvenile delinquent? * Are now or have you ever been on parole, probation supervision, under a suspended sentence, or are you awaiting final action on charges against you? b. He enlisted into the Regular Army on 30 June 1971 for a 3-year term; he was 17 years old. Following initial training, orders assigned him to Fort Bliss, TX; he arrived on 9 December 1971. c. On 14 September 1972, he was honorably discharged so he could immediately reenlist. His DD Form 214 shows he completed 1 year, 2 months, and 15 days of his initial 3-year enlistment contract, and was awarded or authorized the National Defense Service Medal. On 15 September 1972, he reenlisted for 3 years and, as a reenlistment option, requested reassignment to Fort Benjamin Harrison, IN. d. Effective 18 May 1972, his chain of command promoted him to specialist four (SP4)/E-4. On 15 September 1972, orders reassigned him to Fort Harrison; he arrived at Fort Harrison on 1 December 1972. e. On or about 18 May 1973, a military policeman (MP) was conducting a background check on the applicant. (1) The MP learned the applicant had two prior civilian arrests for larceny: in April 1970 for stealing tires and in June 1970 for stealing $18. In addition, the MP found the applicant had been placed on probation and was subsequently released from that probation in July 1971. When the MP checked the applicant's service record, he discovered the applicant was still on probation when he enlisted in June 1971. (2) On 8 June 1973, a civilian judge of probate provided a letter affirming, on 24 June 1970, the applicant was charged with the following: breaking into and entering a pool hall, and stealing $18. A civilian court placed the applicant on probation, but then dismissed his case on 2 July 1971. f. On 12 July 1973, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for absenting himself from company formation and then wrongfully appearing without a fatigue shirt at an intersection on Fort Harrison; punishment included reduction from SP4 to private first class (PFC)/E-3. The applicant appealed his punishment, but his appeal was denied. g. On 7 August 1973, he again accepted NJP for absenting himself from his place of duty on 26 July 1973 for 2 hours and 15 minutes, and, on the following day, being absent for 25 minutes. h. On or about 6 August 1973, the applicant's commander notified him via memorandum of his intent to separate him under the provisions of paragraph 14-5d (Incident of Fraudulent Entry – Concealment of Record as a Juvenile Offender), Section I (General), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander stated his reason was that the applicant failed to report all of his arrests on his enlistment documents. i. On 6 August 1973, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for his separation action. The applicant waived his rights and elected not to submit a statement in his own behalf. On 10 August 1973, in a memorandum addressed to the separation authority, the commander recommended the applicant's separation under honorable conditions for failing to report his criminal record. He affirmed the applicant's conduct and efficiency rating were excellent, and that he had received NJP on two occasions. j. On 25 September 1973, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions, per paragraph 14-5d(1), AR 635-200; on 2 October 1973, the applicant was discharged accordingly. His DD Form 214 shows he completed 1 year and 14 days of his 3-year reenlistment contract. He was awarded or authorized the National Defense Service Medal and a marksmanship qualification badge. k. A review of the applicant's DA Form 20 (Enlisted Qualification Record) shows he received conduct and efficiency ratings of "Excellent" for the duration of his active duty service. 4. The applicant asserts his recruiter made a mistake in 1971; he further argues his under honorable conditions character of service should have changed to honorable 6 months after his discharge. He seeks this upgrade so he can become eligible for better insurance rates. a. Regulatory guidance mandated commanders to initiate separation action when they found proof a Soldier had fraudulently procured an enlistment based on deliberate misrepresentation, omission, or concealment, which, if known, might have resulted in rejection. For cases involving juvenile offenders, the evidence had to show the Soldier gave a negative answer to specific questions regarding whether the Soldier had been a juvenile offender. The evidence of record shows the applicant answered "No" to specific questions concerning his prior criminal record, and wrote "None" where the form required all offenses to be listed. b. The Army has never had a policy of automatically upgrading character of service. For consideration of an upgrade, applicants are required to submit applications, within statutory time limits, to the Army Discharge Review Board or the ABCMR. c. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for 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 reenlistment, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was a separation with honor; issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court- martial, and no more than one special court-martial conviction. b. Chapter 14 addressed separation processing for fraudulent entry cases in which commanders had determined Soldiers deliberately misrepresented, omitted, or concealed incidents/information that might have resulted in their rejection for enlistment. For cases involving juvenile offenders, the evidence had to show the Soldier gave a negative answer to specific questions regarding whether he had a record of being a juvenile offender. Once the general court-martial convening authority verified a Soldier's fraudulent entry, he/she could direct discharge and issue a general or honorable discharge; direct the convening of a board of officers; or send the case back to the unit commander and direct 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. 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. 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. ABCMR Record of Proceedings (cont) AR20190007613 6 1