ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20220011101 APPLICANT REQUESTS: in effect: a . Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 19 June 1984, item 1 (Name) to reflect her last name as vice . b. An upgrade to her general discharge to an honorable discharge. c. To have her reenlistment (RE) code changed from “RE-3” to “RE-1”. d. A personal appearance by the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Certificate of Birth * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 19 June 1984 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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, she would like her last name to be changed to her maiden name and an upgrade to her general discharge to an honorable discharge, since her enlistment was not fraudulent. She also wants her reenlistment code changed to RE-1 since it has been over one year since her discharge. 3. The applicant provides a certificate of birth for her child, who was born on 14 February 1982, prior to her enlistment into the U.S. Army. It also shows her maiden name as and the father’s last name as . 4. A review of the applicant's service records shows: a. On 30 April 1984, she enlisted in the Regular Army with the last name of for a period of three years. b. On 29 May 1984, she received a memorandum for record, which reflects she was counseled for concealing the fact that she has two dependent children that she did not list on her application for enlistment. Her husband is also a member of the U.S Army on active duty. She was not eligible for enlistment. No waivers were authorized. c. On 29 May 1984, she received her rights/warning and was being investigated for concealing her dependents at the time of her enlistment. d. On 5 June 1984, she was issued a Notice of Initiation of Elimination Proceedings, which states, “under the provisions of paragraph 7-17, Army Regulation 635-200, you are hereby notified of my intentions to initiate action to effect your separation from the U.S. Army for Fraudulent Enlistment, in accordance with paragraph 7-18c of Army Regulation 635-200”. She was advised of the following: * The right to consult with legal counsel * To present her case before a Board, if she had 6 or more years of military service * To be represented by counsel * To submit statements in her own behalf * To obtain copies of documents that would be sent to the separation authority supporting the proposed action * To waive in writing the rights in the above at any time prior to the date the approval authority takes action on these proceedings e. On 7 June 1984, the applicant: * acknowledged her rights and waived consideration by the Board * submitted statements on her own behalf; however, this document is not included in her service records * she waived the right to consult with counsel * she noted that at the time of her enlistment, her recruiter was aware of her circumstances which is now the basis for her separation * she understood that she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued, and if she received a characterization that is less than honorable, she has the right to make an application to the Army Discharge Review Board (ADRB) or the ABCMR * She further understood that she will be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge * She did not request a psychiatric examination in connection with her separation action f. Her record is void of a complete separation packet available for the Board to review. g. On 19 June 1984, the applicant was discharged from active duty with a general discharge, under the provisions of Army Regulation 635-200, paragraph 7-17(b)(1) for fraudulent entry. Her DD Form 214 shows she completed 1 month and 20 days of active military service. It also shows in: * Item 1 (Name (Last, first, middle): , * Item 23 (Type of Discharge): Discharge * Item 24 (Character of Service): General (Under Honorable Conditions) * Item 26 (Separation Code): “JDA” * item 27 (Reenlistment Code): RE-3 * item 28 (Narrative Reason for Separation): Fraudulent Entry 5. A review of her service records does not reflect she applied to ADRB within the 15-year time limitations. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of her characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. 2. The applicant 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 she did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Based upon a preponderance of evidence, the Board determined that the reentry eligibility code and character of service the applicant received upon separation was not in error or unjust. Additionally, the Board found the evidence presented does not demonstrate the existence of a probable error or injustice. The applicant used the contested name during her entire period of service. The Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 3. The Army has an interest in maintaining the integrity of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. In the absence of evidence that shows a material error or injustice, there is a reluctance to recommend that those records be changed. The Board determined a change in the applicant’s name was not warranted. The applicant is advised that a copy of this decisional document, along with her application and the supporting evidence she provided, will be filed in her official military records. This should serve to clarify any questions or confusion regarding the difference in the name recorded in her military records and to satisfy her desire to have her legal name documented in her military records. 4. 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 :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. 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 Army Board for Correction of Military Records (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 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor. 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 7-17 states a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active 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 reenlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention. 3. Army Regulation 601-210 (Personnel Procurement Regular Army Enlistment Program) paragraph 3-3 states all disqualifications must be revealed by prior service personnel. It further states service applicants must list all Article 15's, courts-martial convictions, and time lost during all periods of previous service. It prescribes eligibility criteria governing enlistment into the RA from civilian life of persons with or without prior service. 4. Army Regulation 635-5 (Personnel Separations - Separation Documents) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code JDA is the appropriate code to assign to Soldiers separated under the provisions of AR 635- 200, paragraph 7-17b, due for fraudulent entry. In addition, the name on the DD Form 214, item 1 is listed as the name at the time of separation. 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 based on 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011101 1 1