IN THE CASE OF:   
 
  BOARD DATE: 8 August 2023 
 
  DOCKET NUMBER: AR20220011371 
 
 
APPLICANT REQUESTS:  reconsideration of his previous request to upgrade his general, under honorable conditions discharge to an honorable discharge.  
 
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) 
 
FACTS: 
 
1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20190007613, on 20 August 2019. 
 
2.  The applicant states he would like to be able to get insurance from USAA. He asks that the Board review his records to show that a clear and unmistakable error has been made. He provided information about his prior arrest as minor before he had joined the service. The commanding officer took his information thinking that the infraction occurred during his active service and annotated the incorrect information on the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) as a general discharge.   
 
3.  Review of the applicant’s service records shows:  
 
 a.  On 13 May 1971, following receiving written consent from his mother to enlist, as part of the enlistment process, the applicant completed a DA Form 3286 (Statements for Enlistment (Parts I through V)). Under Part II (Statement of Law Violations and Previous Conditions); he answered "No" to the below-listed questions and showed "None" where the form required specific instances arrests, charges, and adjudications to be listed: 
 
• Have you ever been arrested, cited, charged, or held by Federal, State, County, City, or other law enforcement authorities or by juvenile, Court or Juvenile Probation Officials for any violation of any Federal Law, State Law, County or Municipal Law, Regulation or Ordinance? 


• Have you ever been convicted of a felony or any other offenses, or adjudicated a youthful or juvenile delinquent? 

• Are now or have you ever been on parole, probation supervision, under a suspended sentence, or are you awaiting final action on charges against you? 


 
 b.  The applicant enlisted into the Regular Army on 30 June 1971 for 3 years. He completed training and was awarded military occupational specialty 64C, Motor Transport Operator. He was assigned him to Fort Bliss, TX. He was promoted to specialist four (SP4)/E-4 on 18 May 1972.  
 
 c.  On 14 September 1972, he was honorably discharged for immediate reenlistment. He was issued a DD Form 214 that shows he completed 1 year, 2 months, and 15 days of active service.  
 
 d.  The applicant reenlisted in the Regular Army on 15 September 1972, for 3 years and opted for reassignment to Fort Benjamin Harrison, IN, as a reenlistment option. He arrived at Fort Benjamin Harrison on 1 December 1972. 
 
 e.  On or about 18 May 1973, a military policeman (MP) was conducting a background check on the applicant. 
 
  (1)  The MP learned the applicant had two prior civilian arrests for larceny: in April 1970 for stealing tires and in June 1970 for stealing $18.In addition, the MP found the applicant had been placed on probation and was subsequently released from that probation in July 1971. When the MP checked the applicant's service record, he discovered the applicant was still on probation when he enlisted in June 1971.   
 
  (2)  On 8 June 1973, a civilian judge of probate provided a letter affirming, on 24 June 1970, the applicant was charged with the following: breaking into and entering a pool hall and stealing $18. A civilian court placed the applicant on probation, but then dismissed his case on 2 July 1971.  
 
 f.  On 12 July 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, for absenting himself from company formation and then wrongfully appearing without a fatigue shirt at an intersection on Fort Harrison. His punishment included reduction to private first class (PFC)/E-3.  
 
 g.  On 7 August 1973, he again accepted NJP under Article 15 for absenting himself from his place of duty on 26 July 1973 for 2 hours and 15 minutes, and, on the following day, being absent for 25 minutes. 
 
 h.  On or about 6 August 1973, the applicant's commander notified the applicant of his intent to separate him under the provisions of paragraph 14-5d (Incident of 
Fraudulent Entry – Concealment of Record as a Juvenile Offender), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander stated his reason was that the applicant failed to report all of his arrests on his enlistment documents. 
 
 i.  On 6 August 1973, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for his separation action. He waived his rights and elected not to submit a statement in his own behalf.  
 
 j.  On 10 August 1973, the immediate commander initiated separation action against the applicant for failing to report his criminal record.  He affirmed the applicant's conduct and efficiency rating were excellent, and that he had received NJP on two occasions. The commander recommended a general discharge.  
 
 k.  On 25 September 1973, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions, per paragraph 14-5d(1), AR 635-200. 
 
 l.  On 2 October 1973, the applicant was discharged accordingly. His DD Form 214 for this period of service shows he was discharged under the provisions chapter 14 of AR 635-200 with an under honorable conditions (general) characterization of service (Separation Code 290, Reentry Code 3). He completed 1 year and 14 days of his 3-year reenlistment contract.   
 
 m.  On 20 August 2019, the Board denied his request for an upgrade. The Board carefully considered his request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered his statement, his record of service, his reenlistment, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency.  The Board found insufficient of in-service mitigation to overcome the misconduct and 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 
 
4.  The Board should consider the applicant's new argument and his overall record in accordance with the published equity, injustice, or clemency determination guidance. 
 
BOARD DISCUSSION: 
 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting 
documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The applicant was discharged for misconduct after he had failed to report all of his arrests on his enlistment documents. He received a general discharge. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature 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 to amend the decision of the ABCMR set forth in Docket Number AR20190007613, on 20 August 2019. 
 
  8/8/2023X

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.  Army Regulation 635-200, (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.   
 
 a.  An honorable discharge was a separation with honor; issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance.  A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court-martial conviction. 
 
 b.  Chapter 14 addressed separation processing for fraudulent entry cases in which commanders had determined Soldiers deliberately misrepresented, omitted, or concealed incidents/information that might have resulted in their rejection for enlistment.  For cases involving juvenile offenders, the evidence had to show the Soldier gave a negative answer to specific questions regarding whether he had a record of being a juvenile offender.  Once the general court-martial convening authority verified a Soldier's fraudulent entry, he/she could direct discharge and issue a general or honorable discharge; direct the convening of a board of officers; or send the case back to the unit commander and direct retention. 
 
2.  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//