ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 May 2021 DOCKET NUMBER: AR20210007902 APPLICANT REQUESTS: The applicant requests the upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Army Discharge Review Board) * Applicant's birth certificate * DD Form 214 (Report of Separation from Active Duty) * DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) 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 a recruiter knowingly and illegally placed him in the military when the applicant was underage; the recruiter did this by falsifying the applicant's birthdate. The applicant argues the recruiter took advantage of his willingness to serve his country, and because of the recruiter's actions, the applicant has felt stigmatized by the less than honorable character of service he later received. He further points out, when his colonel discovered what the recruiter had done, he asked whether the applicant wanted to leave the military with full benefits (implying the colonel was supposed to ensure that, after discharge, the applicant would have access to Department of Veterans Affairs (VA) benefits). The applicant affirms he has been unable to receive any VA benefits. In support of his claims, the applicant provides a copy of his birth certificate, which shows a birth year of the applicant also submits a DD Form 214 and DD Form 215. 3. The applicant's service records show: 1 a. As part of his enlistment into the U.S. Army Reserve (USAR), the applicant and his recruiter completed a DD Form 1966 (Application for Enlistment – Armed Forces of the United States). (1) In item 11 (Date of Birth), Section I (Personal Data), the applicant's year of birth is listed as (By making his birth year the applicant's age would be 18). (2) On 27 December 1978, the applicant signed Section V (Certification), and, by his signature in item 42, the applicant affirmed the following: "I understand that the Armed Forces representative who will accept my enlistment does so in reliance on the information provided by me in this document; that if any of the information is knowingly false or incorrect, I may be prosecuted under Federal civilian or military law or subject to administrative separation proceedings and, in either instance, I may receive a less than honorable discharge which could affect my future employment opportunities. I certify that the information given by me in this document is true, complete, and correct to the best of my knowledge and belief." (3) Item 43 (Data Verification: To be completed by the recruiter who enters a description of the actual documents reviewed by him/her to verify). The recruiter indicated he had used the applicant's birth certificate to verify the applicant's age. (4) Item 44 (Recruiter) shows, on 27 December 1978, the recruiter signed, attesting to the following: "I certify that I have witnessed applicant's signature above and further certify that I have verified the data in Sections I, III, and IV of this document, and the documents listed above as prescribed by my directives. I understand my liability to trial by court- martial under the Uniform Code of Military Justice (UCMJ) should I effect or cause to be effected the enlistment of anyone known by me to be ineligible for enlistment." (5) Section VI (Parental/Guardian Consent for Enlistment). All entries show "N/A" (not applicable). (6) Section VIII (Recertification by Applicant, and Correction of Data at Time of Enlistment). On 27 December 1978, both the recruiter and the applicant signed that there were no changes required. b. On 12 January 1979, the applicant enlisted in the USAR for 6 years. On 9 March 1979, he entered active duty to complete initial entry training; on 15 June 1979, orders honorably released the applicant from active duty and returned him to his Troop Program Unit. His DD Form 214 (Report of Separation from Active Duty) shows he completed 3 months and 7 days of net active duty service. c. On or about 27 June 1979, the applicant and a recruiter filled out a DD Form 1966, as part of the applicant's request to enlist in the Regular Army. (1) Item 11 in Section I again reflected the applicant's birth year as In Section V (Certification), item 39, the applicant signed, attesting to the following statement: "I certify that the information given by me in this document is true, complete, and correct to the best of my knowledge and belief. I understand that I am being accepted for enlistment based on the information provided by me in this document; that if any of the information is knowingly false or incorrect, I could be tried in a civilian or military court and could receive a less than honorable discharge which could affect my future employment opportunities." (2) Item 40 (Data Verification by Recruiter) shows the recruiter used a DD Form 372 (Application for Verification of Birth for Official U.S. Armed Forces Use Only) to validate the applicant's birth date. (Per Army Regulation (AR) 601-210 (Regular Army Enlistment Program), recruiters used a DD Form 372 when an applicant was unable to produce satisfactory proof of his/her date of birth). (3) Item 44 (Recertification by Applicant and Correction of Data at Time of Active Duty Entry). On 29 June 1979, both the recruiter and the applicant signed, affirming changes in item 20 (Accession Data), but no change in the applicant's date of birth. d. On or about 28 June 1979, the applicant requested clearance to enlist in the Regular Army; the approval authority subsequently granted the applicant's request. On 2 July 1979, the applicant enlisted into the Regular Army for 4 years; assuming a birth year of the applicant was 18 years old when he entered the Regular Army. Because the applicant had previously completed initial entry training, orders directly assigned him to Fort Hood, TX, and he arrived at his unit on or about 20 July 1979. e. On 21 November 1979, the applicant's Fort Hood unit reported him as confined by civilian authority, following his arrest for a traffic violation; on 27 November 1979, the civilian authority released the applicant and returned him to military control. f. In December 1979, the applicant's noncommissioned officers (NCO) counseled him three times: * 17 December 1979 – absence from formation and work * 18 December 1979 – verbal disrespect toward an NCO * 18 December 1979 – failure to pay a debt g. On 20 December 1979, the applicant's company commander submitted a flagging action to block the applicant's promotion to private/E-2 because the applicant was absent from his place of duty. h. Between January and March 1980, the applicant's leadership counseled him four times: * 10 January 1980 – repeated absences * 24 January 1980 – company commander counseled applicant for the applicant's inability to adapt to military life and his failure to meet performance and appearance standards; applicant's continual display of apathy would result in a bar to reenlistment and possible discharge * 1 February 1980 – absent on 1 February 1980 * 6 March 1980 – repeated absences i. On or about 12 March 1980, the applicant accepted nonjudicial punishment under Article 15, UCMJ for two specifications of failure to report to duty on time; the punishment consisted of a forfeiture of $104 and 7 days' correctional custody. The applicant filed an appeal, and, on 12 March 1980, the appellate authority denied the appeal, stating the applicant's correctional custody would commence on 12 March 1980. j. On 26 March 1980, the applicant's commander advised him he was initiating separation action against the applicant under chapter 5 (Separation for Convenience of the Government), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander stated he intended to recommend the applicant for a general discharge, and told him to consult with counsel at the Office of the Staff Judge Advocate. The commander's reasons for initiating separation action were the applicant's poor attitude, lack of motivation, lack of self-discipline, and failure to demonstrate promotion potential. In addition, the applicant had displayed a "quitter attitude," showed hostility toward the Army, and demonstrated an inability to accept instructions. k. In an undated indorsement, and after consulting with counsel (a Judge Advocate General (JAG) officer), the applicant acknowledged his commander's separation notification and affirmed he consented to the proposed discharge action; the applicant declined to submit statements in his own behalf. l. On 16 April 1980, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions. On 21 April 1980, orders discharged the applicant accordingly. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 months and 14 days of his 4-year enlistment contract, with lost time from 19791121 through 19791126. The DD Form 214 listed no awards or decorations. The separation authority was paragraph 5-31h (2) (Expeditious Discharge Program (EDP) – Discharge Authority – Discharge of Members with No Potential for Useful Service), AR 635-200; the character of service was "General"; and the narrative reason for separation was "Failure to Maintain Acceptable Standards for Retention." m. On 22 April 1980, Fort Hood requested the U.S. Army Reserve Components Personnel and Administration Center (RCPAC) to correct the applicant's DD Form 214 so that item 24 (Character of Service) reflected "Under Honorable Conditions," vice "General." On 23 May 1980, RCPAC issued a DD Form 215 showing this correction. 4. With regard to the applicant's separation under paragraph 5-31 (Expeditious Discharge Program (EDP)), AR 635-200: a. During the applicant's era of service, commanders could initiate separation action against Soldiers who had demonstrated they could not or would not meet the Army's standards. The intent of EDP was to provide commanders with a means of expeditiously eliminating substandard Soldiers, without the commander incurring the administrative burden typically associated with administrative discharges. However, the regulation stipulated EDP was not a "panacea," and did not relieve commanders of their professional obligation to make a sincere effort to produce good Soldiers from seemingly poor ones. b. The regulation additionally stated commanders could not use EDP as a substitute for other administrative action. Further, the Soldier could not be separated under this provision unless he/she had voluntarily consented, and, if the commander intended to recommend an under honorable conditions character of service, the Soldier had to receive the opportunity to consult with counsel (i.e. a JAG officer). c. The regulation required the release from active duty and transfer to the Individual Ready Reserve of all Soldiers separated under EDP, except when the separation authority directed otherwise. Paragraph 5-31h (2) stated, "Discharge those members deemed to have no potential for useful service under conditions of full mobilization." 5. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement (circumstances regarding his age), his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board noted that the applicant's actual age upon enlistment was not a factor in his discharge or in determining his character of service. Based on a preponderance of evidence, the Board determined 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 :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. 6/22/2021 X CHAIRPERSON 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 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, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 5-31 (Expeditious Discharge Program (EDP)). Commanders could discharge Soldiers under this program when they demonstrated they could not or would not meet the Army's accepted standards for enlisted personnel. (1) The intent of EDP was to provide commanders with a means of expeditiously eliminating substandard Soldiers, without the commander incurring the administrative burden typically associated with administrative discharges. However, the regulation stipulated EDP was not a "panacea," and did not relieve commanders of their professional obligation to make a sincere effort to produce good Soldiers from seemingly poor ones. (2) The regulation additionally stated commanders could not use EDP as a substitute for other administrative action. Further, the Soldier could not be separated under this provision unless he/she voluntarily consented, and, if the commander intended to recommend an under honorable conditions character of service, the Soldier had to receive the opportunity to consult with counsel (i.e. a JAG officer). (3) The regulation required the release from active duty and transfer to the Individual Ready Reserve of all Soldiers separated under EDP, except when the separation authority directed otherwise. Paragraph 5-31h (2) stated, "Discharge those members deemed to have no potential for useful service under conditions of full mobilization." 3. AR 135-178 (Army National Guard and USAR – Separation of Enlisted Personnel), in effect at the time, stated the following: a. Chapter 3 (Discharge of Enlisted Members not Qualified for Retention), section II (Separation for Minority), in effect at the time, stated a minor under 17 years of age was incapable of entering into a valid enlistment; such an enlistment was void. Minors who had passed their 17th birthday, but were not yet 18 years of age, were required to be discharged upon a parent's application; however, an enlisted Soldier who had enlisted at 17, with his/her parents' consent, would not be discharged under this provision. Separation authorities were to send any "doubtful cases" to the Commander, RCPAC for a decision. The regulation did not specify a character of service for Soldiers separated under this provision. b. Chapter 4 (Separation of Enlisted Members of the USAR for the Convenience of the Government), Section III (Erroneous Enlistments/Extensions). When a commander discovered a Soldier's enlistment was erroneous, based upon the Soldier's failure to meet enlistment qualifications and in cases where there was no evidence of fraud, the commander was to initiate one of the following: request authority to retain the Soldier, discharge the Soldier for erroneous enlistment, or void the Soldier's enlistment. Commanders were required to discharge Soldiers with nonwaivable disqualifications. The regulation did not specify a character of service for Soldiers separated under this provision. c. Chapter 7 (Misconduct) addressed fraudulent enlistments. A fraudulent enlistment was voidable when a Soldier had procured his/her enlistment through deliberate material misrepresentation, omission, or the concealment of facts, which, if known, could have resulted in that Soldier's rejection. The regulation required separation authorities to issue Soldiers discharged for a fraudulent enlistment an under other than honorable conditions discharge. Section IV (Fraudulent Entry) listed eight reasons, none of which included concealing one's actual age. 4. AR 140-111 (USAR Enlistment Program) indicated, for potential enlistees less than 18 years of age and with no prior service, the DD Form 1966 had to show an applicant's parents had consented to the applicant's enlistment. The regulation stated authorities responsible for approving enlistments could not consider a waiver for age. 5. 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. //NOTHING FOLLOWS//