IN THE CASE OF: BOARD DATE: 8 December 2021 DOCKET NUMBER: AR20210012039 APPLICANT REQUESTS: In effect: a. Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 31 October 1990, to show his service was characterized as honorable; b. A personal appearance before the Board; and c. Compensation for his mental suffering after being dishonored by the military. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 14 December 2020, with two hand-written self-authored defense statements, dated 15 February 2018 and 17 April 2019 * nine-character reference letters, dated between 24 September 1990 and 9 October 1990 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, in effect the following in his hand-written statements: a. He notified his recruiter about his charges prior to coming on active duty and should not be held liable. He had no other charges since the first occurrence. He was a good Soldier with no Article 15s or courts-martial. He failed the background check because the military requested a security clearance. He was penalized for a civilian incident prior to his outstanding service. He never committed and violent crimes and marijuana is now legal at the State and Federal level. b. He was denied a Department of Veterans Affairs (VA) home loan guarantee, because he was discharged with less than the 24 months of service needed to qualify. However, he successfully served 14 months. He asserts he should not have been discharged after entering active duty and his counsel was ineffective. c. He had a vision to provide superior job performance in service, which he accomplished by earning many accolades. He attended a rehabilitation program to satisfy his charges and pay his debt to society but this was not recognized by the military. He acquired an attorney named F_, to dismiss his charges following the expungement process. However, the military reconvicted and resentenced him by demanding separation, over a marijuana charge, after he had already paid his debt to society. This was a racist act. 3. A portion of the applicant's request includes financial compensation for mental suffering the applicant contends he incurred by being dishonored by the military. This Board exists to remedy errors or injustices by ordering the correction of erroneous Army records. The Board cannot and does not order the payment of monies to applicants; however, in certain circumstances, a record correction could result in a financial payment to an applicant but such payment would be made by the Defense Finance and Accounting Service. In this case, the applicant does not attribute his mental suffering to the existence of an erroneous record. Therefore, this portion of the applicant's request is unclear and will not be further addressed in this Record of Proceedings. 4. In preparation for enlistment in the Regular Army, the applicant completed a DD Form 1966 (Record of Military Processing – Armed Forces of the United States), in which he was required to list any incidents with law enforcement authorities on this form in Item 35 (Law Violations). The relevant DD Form 1966 indicates he listed damage to personal property and assault and battery charges; however, he did not disclose his arrests and convictions for drug possession, for which he was sentenced to probation. 5. The applicant enlisted in the Regular Army on 24 August 1989. 6. The applicant’s service records contain the following documentation: a. Federal Bureau of Investigations (FBI) Identification (ID) Division, ID Record, showing a background check was requested on 9 March 1990, for the applicant. This report returned the applicant’s criminal history, which included two possession of marijuana charges that the applicant did not disclose [specific charges listed below]. b. Department of Defense - Defense Investigative Service, (DIS) Report of Investigation, dated 13 June 1990, which provides further Investigative Results pertaining to the applicant’s arrests record and criminal history, and also elaborates on court actions and probation records, to include the following: (1) He was arrested on 29 June 1980 for Battery Police Officer (BPO) and Resisting Arrest (RA). He pled guilty to these charges on November 1980 and was sentenced to one-year supervision. (2) He was arrested on 16 February 1981 and charged with Possession of Marijuana. On 6 May 1981, he appeared in court and agreed to enter a Drug Abuse Program (NFI). On 08 September 1981, the State's Attorney filed for NOLLE: (Nolle Prosequi: A formal refusal by plaintiff or prosecutor to proceed to trial of the cause after it had been put at issue). (3) He was arrested on 16 November 1981 and charged with Possession of Marijuana. On 19 January 1982, he appeared in court, pled and was found guilty, and was sentenced to one year of probation. His probation was satisfactorily terminated in January 1983. (4) He was arrested on 14 April 1988 for Battery. He appeared in court on 2 May 1988 and the charge were Stricken from Docket with Leave to Reinstate (SOL). Charge held in abeyance; if offender got into trouble at a future date, the charge could be reinstated, by the motion of the state. (5) He was arrested on 28 April 1988 for Simple Assault and Criminal Damage to Property. He appeared in court on 28 June 1988 and these charges were ruled SOL. c. U.S. Army Central Personnel Security Clearance Facility, Memorandum, dated 17 August 1990, which shows his completed investigation contained information that indicated the existence of a possible fraudulent/erroneous enlistment. d. DA Form 268 (Report to Suspend Favorable Personnel Actions Flag)), which was initiated against the applicant on 24 August 1990, due to a pending investigation into his possible fraudulent/erroneous enlistment. e. Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, Fort Riley KS, Memorandum, dated 14 September 1990, which shows the applicant listed his Assault and Battery and Damage to Property Charges on his Enlistment/Reenlistment documents, but did not list the use of controlled substances, including marijuana. f. Headquarters, 1st Infantry Division (Mechanized) and Riley, Fort Riley KS, Personnel Operations Branch Chief, Memorandum dated 24 September 1990, which shows the applicant enlisted fraudulently and requested his chain of command take immediate separation actions. g. A second DA Form 268, was initiated against the applicant on 1 October 1990, due to pending elimination for his fraudulent enlistment. 7. The applicant's immediate commander notified the applicant on 11 October 1990 that he was initiating actions to separate him in accordance with Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), paragraph 7-17, due to fraudulent entry. The commander cited, as the reason for his proposed separation action, the applicant's false completion of his enlistment contract by failing to state his arrest and conviction for drug possession. He stated he was recommending the applicant receive an under honorable conditions (general) service characterization. 8. The applicant consulted with legal counsel [Captain H_, not F_] and acknowledged receipt of the proposed separation memorandum on 11 October 1990. He voluntarily waived consideration of his case by an administrative separation board, contingent upon him receiving no less than a general discharge. He indicated he understood the effects of any action taken by him in waiving his rights. He indicated if his conditional waiver was not accepted; he would then request a personal appearance before a separation board. He understood that he may expect to encounter substantial prejudice in civilian life; and could be ineligible for many or all of his rights and benefits as a Veteran under both Federal and State laws if a general discharge under honorable conditions was issued to him. This form further notes net to counsel’s signature block he requested an honorable discharge and to see enclosures. He elected to submit a statement in his own behalf. The applicant’s statement and the enclosures are not available for review. 9. The applicant’s commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 7-17. The commander included a Letter of Recommendation with his request, stating the applicant had been a model Soldier, as supported by statements from his supervisors, peers, and others. He could not, however, recommend he be retained in the Army given the circumstances and nature of his crimes. The applicant lied on his enlistment contract concerning his charges and alleged that his recruiter told him to lie. Given the circumstances and despite the praise of his supervisors and colleagues, he could not recommend retention, his position requires a person of high moral character and trust. He has shown he cannot be trusted. 10. The applicant’s intermediate commander recommended he be separated with a general discharge on 16 October 1990. 11. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 22 October 1990 and ordered that the applicant be discharged with a general discharge. 12. The applicant was discharged on 31 October 1990, under the provisions of Army Regulation 635-200, Chapter 7, paragraph 7-17b (3), by reason of an "Fraudulent entry." The DD Form 214 he was issued shows he completed one year, two months, and eight days of net active service this period; and his service characterized as under honorable conditions (general). 13. The applicant provides two self-authored statements, [as detailed above] and nine reference statements, previously considered prior to his discharge attesting to his character as a Soldier; for consideration in his case. 14. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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 evidence in the records. The Board considered the applicant’s statement, his military service record. The Board found the previous letters of recommendation to be commendable regarding his character and the quality of the applicant being a great Soldier. However, the Board agreed the evidence in the record reflected false information provided by the applicant which resulted in a fraudulent enlistment that did not reveal his prior criminal misconduct. He was discharged for fraudulent entry and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. The Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. The Board concluded there was insufficient evidence of an error or injustice which would warrant an upgrade to the applicant’s characterization of service. Relief was denied. 2. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX 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. 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 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. 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. 3. Army Regulation 635-200, sets forth the basic authority for separation of enlisted personnel. The version of the regulation in effect at the time provided that: a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 7 established policy and prescribed procedures for separating enlisted members for minority, erroneous enlistment, reenlistment or extension of enlistment, defective enlistment agreement, or fraudulent entry. Paragraph 7-17 provided that fraudulent entry is the procurement of an enlistment, re-enlistment, or period of service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or re- enlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. Upon determination that a fraudulent entry existed, the discharge authority would direct discharge and direct issuance of an honorable or general discharge certificate. 4. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018 [Wilkie Memorandum], 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 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) AR20210012039 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1