IN THE CASE OF: BOARD DATE: 17 January 2020 DOCKET NUMBER: AR20190011422 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20170019025 on 10 May 2019. Specifically, he requests correction of his DD Form 214 (Report of Separation from Active Duty) to shows his service was characterized and to show a different narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * his request for reconsideration * his brother's statement, dated 25 July 2019, with contact information 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 AR20170019025 on 10 May 2019. 2. The applicant submitted a statement from his brother with this request, which was not considered by the Board during its initial consideration. This new evidence warrants consideration at this time. 3. The applicant states his case should be reconsidered because his brother's statement is new evidence and he witnessed what he was told by the Army recruiter. 4. The applicant's official record contains a DD Form 1966 (Application for Enlistment – Armed Forces of the United States), dated 18 May 1976, which shows he checked the "NO" boxes that pertained to questions about his background data and involvement with police or judicial authorities. It included questions about drugs, alcohol, mental issues, arrests, probation, parole, and/or court actions. He certified that the information given in the document was true, complete, and correct to the best of his knowledge and belief. He also certified that he understood if any of the information was knowingly false or incorrect, he could be tried in a civilian or military court and could receive a less than honorable discharge that could affect his future employment opportunities. 5. The applicant enlisted in the Regular Army on 26 May 1976. 6. In conjunction with his enlistment, the applicant completed a DD Form 1584 (National Agency Check Request) on 27 May 1976, wherein he noted that he was arrested for shoplifting on 13 March 1973, while 17 years of age. 7. The applicant's discharge packet is not available for review; however, his record contains a separation authority approval memorandum, dated 9 September 1976, directing the voidance of the applicant's enlistment under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, due to recruiter connivance. 8. The applicant's DD Form 214 confirms he was discharged on 21 September 1976, under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct – fraudulent entry. His DD Form 214 shows his character of service as "DNA" (does not apply). 9. The applicant provides a statement from his brother, who contends he and the applicant joined the Army under the buddy plan, which meant they would go to the same places while they were in the military. Unfortunately, that did not happen. He contends that when the recruiter asked the applicant if he had been in trouble before, the applicant's response was "yes," when he was 17 years old. He states that the recruiter told the applicant he did not have to include that information and to just say "no" because he was only 17 years old. The applicant's brother states that the applicant was only following the direction and orders of the recruiter, who was a military Soldier and he had no idea it would affect him in a negative way. He states he was there and that he heard and saw what happened and does not believe that the applicant should suffer for the neglect of someone else. He states he does not believe his brother's enlistment should have been voided. 10. The Board should consider the applicant's statement and provided evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published DoD guidance for consideration of changes to discharges. The Board considered the applicant's statement, the statement provided by his brother, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of mitigating factors, such as additional evidence corroborating the claim that the applicant failed to report an arrest on the advice of a recruiter, which would support a favorable clemency determination. Based on a preponderance of evidence, the Board determined the applicant's voided enlistment was not in error or unjust. 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. REFERENCES: 1. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d states an honorable discharge is a separation with honor. The honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks. b. Paragraph 1-9e states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. False pre-enlistment or pre-induction records will not be used as a basis for characterizing a period of service. c. Paragraph 1-9f states an undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. d. Paragraph 14-5 states fraudulent entry is the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection. 2. Army Regulation 601-210 (Personnel Procurement – Regular Army Enlistment Program), paragraph 3-9, states all disqualifications must be revealed by applicants. It further states applicants will be advised that all arrests, convictions, or adverse juvenile adjudications are required to be revealed regardless of whether a waiver would be required under this regulation. It prescribes eligibility criteria governing the enlistment from civilian life of persons with or without prior service into the Regular Army. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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// ABCMR Record of Proceedings (cont) AR20190011422 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011422 4 ABCMR Record of Proceedings (cont) AR20190011422 3