IN THE CASE OF: BOARD DATE: 11 June 2020 DOCKET NUMBER: AR20200001754 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service was characterized as honorable. 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 1 November 2019 * Memorandum, dated 8 March 1984, Subject: Recommendation of Retention, thru the Commander, Recruiter Liaison, Fort Jackson, South Carolina * Memorandum, dated 25 April 1984, Subject: Request for Retention, Applicant personal statement 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 he would like the status of his discharge upgraded from a general discharge to an honorable discharge. He has thought in the past that his discharge should have shown that he was honorably discharged; he believes his discharge should reflect an honorable discharge. 3. The applicant's record includes three Military Entrance Processing Command (MEPCOM) Forms 714-A (Request for Examination) that show he was administered the Army Services Vocational Aptitude Battery (ASVAB) test on 29 September 1983 and 1 December 1983 in Suffolk County, New York, and on 28 December 1983 in Hudson County, New Jersey. 4. A Privacy Act Statement signed by the applicant on 28 December 1983 shows he certified he had never been tested anytime or anywhere with the ASVAB test, either for enlistment purposes or as a student under the ASVAB school testing program. The applicant also listed his Social Security Number (SSN) on this form as XXX-XX-XXXX, which differed from the two previous Privacy Act Statements he signed in which he listed his SSN as XXX-XX-XXXX. 5. The applicant enlisted in the Regular Army on 5 January 1984. 6. A memorandum of record was submitted on 5 January 1984, from the U.S. Army Recruiting Command (USAREC) Liaison Noncommissioned Officer (LNCO), U.S. Army Reception Station, Fort Jackson, SC to Headquarters, USAREC, Fort Sheridan, IL. The USAREC LNCO noted that he had been contacted by the Fort Monmouth Recruiting Battalion and had been informed that the applicant had taken the Armed Services Vocational Aptitude Battery (ASVAB) test three times within a three month time span; twice in New York and once in New Jersey. 7. The applicant submitted a DA Form 2823 (Sworn Statement) on 7 March 1984, wherein he stated that he took the ASVAB test twice in the State of New York, once in September and once in December of 1984. He did not meet the standards by two points. His recruiter told him he could not take the test again for another six months, he thought it applied to the State of New York. He waited one month and went to the State of New Jersey and took the ASVAB test again. The recruiter in New Jersey did not ask him if he had previously taken the ASVAB test anywhere. He did not know that the six month waiting period applied to all states and this is why he did not tell the recruiter about the two previous tests. 8. By memorandum dated 8 March 1984, from the applicant's company commander to the Commander, U.S. Army Training Center, Fort Jackson, the applicant's company commander recommended the applicant's retention in the Army. The commander noted the applicant had completed all requirements for graduation from basic training and was highly motivated with personal goals and aspirations that matched the needs of the Army. The commander recommended the applicant be retained on active duty despite his apparent erroneous enlistment. The request for retention on active duty was denied. 9. The applicant's company commander notified the applicant on 16 April 1984 of his intent to initiate actions to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 7, by reason of fraudulent entry. 10. The applicant acknowledged receipt of the separation notification on 16 April 1984. He later signed a statement that shows he consulted with counsel on 25 April 1984 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 7, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. The statement shows he elected to submit a statement in his own behalf; however, his statement is not available for review. 11. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 7. The commander cited, as the specific reason and circumstances for the proposed separation, the applicant's enlistment after an unauthorized third test, which is prohibited under the provisions of Army Regulation 601-201 (Regular Army and Army Reserve Enlistment Program), paragraph 5-10. 12. The separation authority approved the applicant's discharge on 17 May 1984, under the provisions of Army Regulation 635-200, Chapter 7 and directed that he receive an Entry Level Separation. 13. The applicant was discharged on 25 May 1984, under the provisions of Army Regulation 635-200, paragraph 7-17b (1), by reason of fraudulent entry. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was credited with completing four months and 21 days of creditable active service. His DD Form 214 further shows in: * Item 24 (Character of Service) – Entry Level Status * Item 26 (Separation Code) – JDA * Item 28 (Narrative Reason for Separation) – Fraudulent Entry 14. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance 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 and length of service, differing social security numbers in the record, multiple tests, the chain of command recommendations and the reason for his separation. The Board found no mitigation associated with the circumstances resulting in separation. Based on a preponderance of evidence, the Board determined that neither the character of service or the reason for separation the applicant received was 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 :XXX :XX :XXX 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, U.S. Code, 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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. This regulation provided that: a. An uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status (except when the characterization of under other than honorable condition is authorized), or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. b. Separating USAR Soldiers who successfully completed a period of Initial Active Duty Training to which ordered, would be considered in an entry level status and their service would be characterized as "uncharacterized," despite having successfully completed their IADT period. c. Paragraph 7-17b(1) provides that a Soldier may be discharged for the concealment of a period of prior service. Characterization of service will normally be under other than honorable conditions if the fraud involves concealment of a prior separation in which service was not characterized as honorable. 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. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. b. 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. c. 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) AR20200001754 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001754 5 ABCMR Record of Proceedings (cont) AR20200001754 4