IN THE CASE OF: BOARD DATE: 15 December 2022 DOCKET NUMBER: AR20220004984 APPLICANT REQUESTS: upgrade of his uncharacterized discharge (fraudulent entry) to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two DD Form 214 (Certificate of Release or Discharge from Active Duty) * ARBA Group C Letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 his original discharge in 2005 was uncharacterized due to alleged fraudulent entry information. This information was cleared up and he was reinstated to active duty, serving from 25 October 2006 until 11 March 2010, when he was honorably discharged with achievement, good conduct, and commendation medals for his service. His alleged fraudulent information was cleared up prior to his reentry to active duty. 3. Prior to his enlistment, the Incident/Investigation Report, dated 21 August 2004, shows an incident of assault family violence class A regarding the applicant. The applicant’s wife stated he had assaulted her without her consent and did cause her pain. The information states she had bruises on both her upper arms, a knot on the left side of her head behind the left ear, and several bruises on her back and side area. She said she did not want to file charges at this time. 4. The State of Texas versus the applicant, dated 7 October 2004, shows the applicant pleaded no contest. He was sane and, in all things, mentally competent. The court further found that the best interest of society and the applicant would be served by deferring further proceedings without entering an adjudication of guilt. It was therefore considered, ordered, and adjudged that the finding of guilty shall not be final and that no judgement be rendered on the applicant and he was hereby placed on probation for a period of 9 months from this date. That during the term of such probation the applicant shall: pay the court $361.00; serve 3 days in jail, complete a minimum of ten hours of community service; provide proof of education or attended an educational program; submit to an evaluation to determine any drug or alcohol dependence or substance abuse problems; submit to urinalysis/breathalyzer screenings; attend, participate, and successfully complete an Anger/Violence Awareness Program; avoid places where alcoholic beverages are served or sold; shall not possess or use any alcoholic beverage, narcotic drug, controlled substance, except upon the prescription of a reputable licensed physician and attend and participate in the New directions program. 5. The letter from the applicant’s probation officer , shows the applicant was placed on probation on 7 October 2004 for Assault Causes Bodily Injury. The charge was reduced from Assault Causes Bodily Injury to Family Violence. The probation officer states he told the station commander and the recruiter the applicant was on probation. 6. Prior to this enlistment he, by self-admission, claimed to have a record of civil offenses and/or juvenile dispositions on 27 October 2004. The date of the offense was 24 March 1992. The issue was a bad check, and his disposition and sentence included a paid fine of $100.00 and 50 hours of community service. 7. The applicant enlisted in the United States Army Reserve, Delayed Entry Program (DEP) on 2 November 2004. 8. The operations officer, Major , interviewed the applicant on 12 December 2004, reference the charge of Attempted Uttering Forged Check (Attempt to Commit) on 6 May 1993. The applicant stated the check was not his; he found the check and attempted to cash it. He was 19 years old and learned very quickly form a stupid thought. He went to court. His sentence was 50 community service hours and a $100.00 fine for the dismissal of the charge. The applicant was honest and upfront in his discussion. The major believed that he thought he listed the charge correctly on his paperwork. The major did not suspect any recruiter impropriety and strongly recommended the applicant be approved of a Serious Criminal Misconduct Waiver and ship on 17 February 2005. 9. USAREC (United States Army Recruiting Command) Form 670-R-E (Moral Waiver Worksheet), dated 7 February 2005, shows the applicant listed speeding and attempted uttering forged instrument on this form. 10. A Recommendation to Maintain in DEP and Ship the applicant, dated 12 February 2005, shows his commander recommended that he be maintained and to process a Serious Criminal Misconduct Waiver, and the applicant be allowed to ship on 16 February 2005. The applicant came back as a match for attempted Uttering Forged Check (Attempt to Commit) on 6 May 1993. The applicant was eligible and fully qualified to ship. The commander strongly recommended approval to Maintain and Ship. 11. An email, Serious Criminal Misconduct Workflow Notification, dated 12 February 2005, shows the waiver was approved by Colonel on 11 February 2005. The applicant regretted his charge of forgery and would like to be given an opportunity to serve his country. 12. Prior to the applicant’s enlistment, he was required to list any incidents with law enforcement authorities on a DD Form 1966 (Record of Military Processing-Armed Forces of the United States). The DD Form 1966 shows a moral waiver was approved on 12 February 2005. 13. USAREC Form 315 (Report of Alleged or Suspected Recruiting Impropriety), dated 18 February 2005, shows the office was contacted by the applicant’s probation officer who stated that the applicant was on supervised probation. The probation officer told the applicant and his recruiter that he could not join the Army; he was on supervised probation. He also instructed the recruiter not to ship him. The probation officer said he was going to issue a warrant for his arrest and that he was using other aliases and names and was probably pending other charges. The probation officer also stated the wife told him that the college transcripts of the applicant were forged. The applicant was recommended for a fraudulent discharge. 14. The applicant enlisted in the Regular Army on 17 February 2005 for four years. He was assigned to the 120th Adjutant General Battalion (reception), Fort Jackson, SC, for in-processing. 15. On or about 1 March 2005, the applicant's immediate commander recommended separation from the service and issuance of an Entry Level Separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 7-17. The reasons were the applicant willfully and intentionally failed to disclose he was on probation for nine months starting on 7 October 2004. He was arrested on 22 August 2004 under the name of . The command was contacted by his probation officer and advised that the applicant was really . The probation officer told the applicant and his recruiter that he could not leave the state of Texas while on probation. 16. The applicant was afforded the opportunity to go to Trial Defense service (TDS) office and to receive the administrative briefing form TDS personnel, on the basis for his contemplated separation and its effects, the rights available to him and the effect of a waiver of those rights; however, he voluntarily, knowing and intelligently waived the opportunity to speak with counsel on 1 March 2005. He also elected not to submit a statement. 17. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an uncharacterized discharge. 18. The separation authority approved the recommended discharge on 7 March 2005 and directed that the applicant’s discharge from the Army with a characterization of service as uncharacterized. issuance of a DD Form 257 (General Discharge Certificate). 19. Orders 066-1201, dated 7 March 2005, Headquarters, U. S. Army Training Center, Fort Jackson, SC, reassigned him to the transition point for separation processing and after processing discharged him. Date of discharge 16 March 2005. 20. The applicant was discharged on 16 March 2005. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 7, fraudulent entry, Separation Code JDA and Reentry Code 3. His service was uncharacterized. He completed 1 month of active service. 21. After a break in service, the applicant enlisted in the Regular Army on 25 October 2006. He held MOS 92F, Petroleum Supply Specialist. a. He served in Iraq from 13 November 2007 to 5 February 2009. b. He attained the rank/grade of sergeant in July 2008. c. He was honorably released from active duty to attend civilian school, and transferred to the USAR Control group, St Louis, MO on 11 March 2010. His DD Form 214 shows he completed 3 years, 4 months, and 17 days of active service. 22. On 18 November 2011, the Army Discharge Review Board (ADRB) reviewed his March 2005 discharge and determined that he was properly and equitably discharged and denied his request for a change in the character and/or reason of his discharge. 23. After a break in service, he enlisted in the North Carolina Army National Guard (NCARNG) on 27 March 2012. a. His DD Form 1966/1 shows an enlistment date of 27 March 2012 and the Civil Conviction Waiver, dated 18 May 2012, National Guard Bureau, Arlington, VA shows a granted waiver for the conviction of “Harassing Phone Call” on 16 March 2005 in Winston Salem, NC. b. He was released from the North Carolina Army National Guard on 10 October 2014 and transferred to the USAR Control Group, Fort Knox, KY. c. His NGB Form 22 (Report of Separation and record of Service) shows he was released under the provisions of National Guard Regulation (NGR) 600-200 (Personnel Separation) chapter 6-35j, unsatisfactory participation with a characterization of service as general, under honorable conditions. 24. Orders D-03-808978, dated 27 March 2018, U. S. Army Human Resources Command, Fort Knox, KY honorably, discharged him from the USAR. Effective date 27 March 2018. 25. The applicant provides ARBA letter, dated 24 August 2021, referencing his ability to re-apply to ABCMR since he had applied to the ADRB before, and his application was denied or not fully granted between 17 April 2011 and 4 September 2014. 26. By regulation, AR 635-200, Chapter 7, 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. 27. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination 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, his record of service, the reason for his separation in 2005, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors in support of a clemency determination. The Board found the evidence confirms the applicant enlisted in 2005 without fully disclosing his history of misconduct as he was required to do and as a result he was discharged while still in an entry-level status. Based on a preponderance of evidence, the Board determined the applicant’s uncharacterized service for the period ending 16 March 2005 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. 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, 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 (AR) 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. Chapter 3 provides that a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active-duty service at the time separation action is initiated. b. 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. 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. 3. 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) AR20220004984 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1