IN THE CASE OF: 

		BOARD DATE: 4 April 2023

		DOCKET NUMBER: AR20220008365


APPLICANT REQUESTS: Upgrade of her under honorable conditions (general) 
discharge and a personal hearing before the Board via video/telephone.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate if Release or Discharge from Active Duty)

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 she believes she served in the Army honorably, but she is 
bisexual and her command at the time did not approve of that. She has proven to be an 
outstanding American with pride in her country. She thinks her recruiter overlooked the 
fact that she was living with a female. 

3.  The applicant enlisted in the Regular Army on 18 April 1989 for 4 years. She 
completed training with award of military occupational specialty 31M (Multichannel 
Communications System Operator).

4.  By memorandum, dated 19 December 1989, the applicant's commander was 
informed of her possible fraudulent enlistment. If determined that the enlistment was in 
fact fraudulent, action would be taken to separate the applicant or request retention.

	a.  When the applicant was in-processed on 25 October 1989, it was discovered that 
she had two additional dependents more than were reported when she entered active 
duty on 18 April 1989. Her enlistment contract (DD Form 1966/2) listed only two 
dependents (a husband and daughter).

	b.  On 28 March 1989, a DD Form 93 (Emergency Data Card) was prepared on her 
which only listed two dependents (her husband and daughter). When she arrived at Fort 
Drum, a new DD Form 93 was prepared and lists her as having four dependents 
(husband, daughter, and two sons).

	c.  There was no evidence of a dependent waiver in the military personnel record. 
However, a review of her records shows a spouse and three minor children on the date 
of her enlistment.

5.  A General Counseling Form, dated 22 March 1990, informed the applicant that 
effective immediately her family care plan was disapproved. Her local care provider is 
not capable nor certified to perform childcare responsibilities. Attached to the counseling 
form were two Memorandums for Record (MOR) outlining the commands discussions 
and recommendations.

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 22 March 1990, 
shows the applicant had no abnormalities in behavior, level of orientation, mood, 
thinking process, thought content or memory. She was determined to be mentally 
capable to understand and participate in the proceedings deemed appropriate by 
command.

7.  By memorandum from a Social Worker, dated 2 April 1990, the applicant's 
commander was provided additional information on a Family Advocacy Case, noting 
that the applicant's husband had been leaving the three children alone while he went 
out. He had been charged with driving while intoxicated and endangering the welfare of 
a child. The applicant had refused assistance in childcare and the quarters the children 
were in was described as unsanitary and in a state of disarray. It was recommended 
that she be considered for administrative action by command, to include being placed in 
a nondeployable status and/or processed for hardship discharge.

8.  On 12 April 1990, the applicant's immediate commander notified her of his intent to 
initiate elimination actions under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 7, for fraudulent entry. The 
specific reason for this action was the applicant's omission of a second child on her 
enlistment documents and her failure to properly care for her children.

9.  The applicant consulted with legal counsel and was advised of the basis for the 
contemplated discharge, the possible effects of an under honorable conditions 
discharge, and the procedures and rights that were available to her. She requested a 
conditional waiver contingent upon her receiving a characterization of service or 
description of service no less favorable than honorable. She indicated she was 
submitting a statement in her own behalf.

10.  In her statement, the applicant indicated that she had told her recruiter that she had 
three children two of whom were with her mother. Her recruiter only included her 
husband and her daughter on the enlistment contract. She outlined her service and 
desire to make the Army a career.

11.  The applicant's immediate commander formally recommended her separation from 
service under the provisions of AR 635-200, Chapter 7. He recommended the applicant 
be separated with a general discharge.

12.  The separation authority approved the discharge recommendation, on 26 April 
1990, and directed the issuance of a general (under honorable conditions) discharge.

13.  The applicant was discharged accordingly on 10 May 1990, in the pay grade of E-3. 
Her DD Form 214 confirms she was discharged under the provisions of AR 635-200, 
paragraph 7-17a(3) for fraudulent entry and her service characterization was under 
honorable conditions (general) (Separation Code JDA and Reentry Code 3). She was 
credited with 1 year and 23 days of net active service. Her awards are shown as the 
Army Service Ribbon and the Marksman Qualification Badge with Rifle bar.

14.  The available record is void of any evidence that the applicant's alleged sexual 
orientation was known to her command or that if it was a factor in the decision to 
separate her.

15.  Clemency guidance to the Boards for Correction of Military/Navy Records 
(BCM/NR) does not mandate relief, but rather provides standards and principles to 
guide Boards in application of their equitable relief authority to ensure each case will be 
assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby 
a service member under the same circumstances today would reasonably be expected 
to receive a more favorable outcome.  

BOARD DISCUSSION:

1.  The Board determined 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.

2.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. The 
evidence of record shows the FSM served on active duty from 24 October 1967 to 20 
June 1970. During this period, he served in Vietnam from 10 April 1968 to 21 June 
1970. His DA Form 20 shows he was wounded and/or sustained lacerations on his left 
cheek and left knee on 28 February 1969. He was awarded the Purple Heart for that 
injury. There is no evidence of a second or third injury as a result of hostile action or 
medical records to show treatment for a second or third injury. 

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:

Except for the correction addressed in Administrative Note(s) below, the Board found 
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  601-210 (Regular Army and Reserve Components Enlistment 
Program), paragraph 2-2, Rule F states that a person with a spouse is eligible for 
enlistment if he or she has two or less additional dependents or has received a waiver 
for three or more additional dependents. 

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel. The version 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 Soldiers whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

	c.  Army Regulation 635-200, Chapter 7 provides the authority, criteria, and 
procedures for the separation of Soldiers because of minority, erroneous enlistment, re-
enlistment or extension of enlistment, defective enlistment agreement, or fraudulent 
entry.  

	d.  Paragraph 7-17 describes fraudulent entry is the procurement of an enlistment, 
re-enlistment, 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 re-enlistment, might have resulted in 
rejection. This includes all disqualifying information requiring a waiver. 

	e.  It states commanders will determine if previously concealed information is, in fact, 
disqualifying. Any waivable or non-waivable disqualification concealed, omitted, or 
misrepresented constitutes fraudulent entry. This includes concealing information with 
alleged or actual recruiter connivance. If, however, the newly revealed information does 
not amount to a disqualification from enlistment or re-enlistment under the appropriate 
regulation, there is no fraudulent enlistment or re-enlistment. Hence, the enlistment or 
re-enlistment is valid, and separation may not be directed. Commanders must verify the 
existence and true nature of the apparently disqualifying information. Verification of the 
actual offense may reveal that the enlistee was not disqualified and, therefore, is not a 
fraudulent enlistee.

	f.  Misrepresentation of intent with regard to legal custody of children. A Soldier who 
was an applicant without a spouse at the time of enlistment will be processed for 
separation for fraudulent entry if custody of a child is regained by court decree, as 
provided by State law, or as a result of a child resuming residency with the Soldier 
instead of the legal custodian. Because the Soldier certified at enlistment that the 
custody arrangement was intended to remain in full force and effect during the term of 
enlistment, the burden is on the Soldier to demonstrate that regaining custody is not 
contrary to statements made at the time of enlistment.

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency 
generally refers to relief specifically granted from a criminal sentence. Boards for 
Correction of Military/Naval Records 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.)	AR20220008365


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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