IN THE CASE OF:  

BOARD DATE:  26 March 2020

DOCKET NUMBER:  AR20190014581


APPLICANT REQUESTS:  

	a.  His under honorable conditions (general) discharge be upgraded to an honorable 
discharge;

	b.  Correction of his DD Form 214 (Report of Separation from Active Duty) to show 
an honorable service characterization and a more favorable narrative reason for 
separation; 

	c.  Reinstatement on active duty with all rank and privileges and credit for sufficient 
service toward a regular retirement; and

	d.  A personal hearing before the Board.

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), dated 30 August 2019, with self-authored 
statement
*	DD Form 214, for the period ending 10 October 1975

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
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 discharge and charge of fraudulent entry should be 
overturned without prejudice.  He should be reactivated back into the Army with all rank 
and privileges up to the age he would have been upon his retirement.  He should be 
granted medical, dental, and life insurance, as well as retired pay.  If he had known 
back in October 1975 that he had a right to legal representation, he would still be in the 
Army.  He was denied counsel at the time of his discharge.
3.  In conjunction with his impending enlistment, the applicant completed a 
DD Form 1966 (Application for Enlistment – Armed Forces of the United States) on 
24 July 1975.  In item 40 of this form, he answered "No" to the question "Are you now 
involved in or party to or connected with any court action or civil suit?"  He reviewed and 
certified the DD Form 1966, indicating the information was correct and true to the best 
of his knowledge.

4.  The applicant enlisted in the Regular Army on 25 July 1975.

5.  The applicant was identified as having enlisted fraudulently on 12 September 1975, 
based on his arrest on 9 April 1975 for auto theft and kidnapping and his arrest on 
15 April 1975 for robbery.

6.  The applicant's immediate commander notified the applicant on 15 September 1975, 
of his intent to initiate separation actions against him under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-38, for 
concealment of felony arrest record.  The applicant acknowledged receipt on the same 
date.

7.  The applicant's commander formally recommended the applicant's separation on 
15 September 1975, under the provisions of Army Regulation 635-200, paragraph 5-38.

8.  The applicant consulted with counsel on 18 September 1975 and acknowledged that 
he had been advised of the basis for the contemplated action to separate him under the 
provisions of Army Regulation 635-200, paragraph 5-38, and its effects; the rights 
available to him; and the effect of any action taken by him in waiving his rights.

	a.  He acknowledged he may be given a general discharge under honorable 
conditions.  He understood that as a result of this discharge he may encounter 
substantial prejudice in civilian life.

	b.  He elected to submit a statement in his own behalf; wherein, he stated his arrest 
record wasn’t explained to the recruiter because he didn’t think it was important.  He 
requested to stay in the Army.

9.  A DA Form 2496 (Disposition Form) indicates the applicant received a mental status 
evaluation on 22 September 1975, during which he found to be mentally capable to 
understand and participate in board proceedings.

10.  The separation authority approved the recommended discharge under the 
provisions of Army Regulation 635-200, Chapter 5, and directed the issuance of a 
DD Form 257A (General Discharge Certificate).

11.  The applicant was discharged on 10 October 1975, in the rank/grade of private/E-1.  
The DD Form 214 he was issued shows he was credited with two months and 16 days 
of net active service.  His DD Form 214 does not cite an authority or narrative reason for 
separation; however, block 27 (Remarks) contains the entry "Fraud Entry."  His service 
was characterized as under honorable conditions.

12.  The applicant provides a self-authored statement detailing the events surrounding 
his arrest record and discharge processing.

13.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  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.
2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.  The Board carefully considered the applicants request, 
supporting documents, and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant's statement, and the reason for 
his separation.  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.
















BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XX	:XX	:XX	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.  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.  Title 10, USC, Section 3914 provides that under regulations to be prescribed by the 
Secretary of the Army, an enlisted member of the Army who has at least 20 years, but 
less than 30 years of service computed under section 3925 of this title may, upon his 
request, be retired.  Section 3925 states for the purposes of determining whether an 
enlisted member of the Army may be retired under section 3914 his or her years of 
service are computed by adding all active service in the armed forces.

3.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The regulation provides that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  It is not an investigative body.  
The ABCMR may, in its discretion, hold a hearing.  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.

4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.

	a.  Paragraph 3-7a states 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 5-38 of the regulation in effect at the time provided for the discharge of 
enlisted personnel who concealed an arrest record which did not result in civil court 
conviction at the time of enlistment or induction.  This policy permitted the elimination of 
personnel who represent a potential undesirable element and used only when clearly 
apparent that an individual concealed a serious arrest record (felony offense).  A pattern 
of arrests is suggestive of undesirable character traits.  The pattern may include 
misdemeanors and lesser offenses in addition to a felony.

5.  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)	 AR20190014581


6
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
Record of Proceedings


1