IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220010190 APPLICANT REQUESTS: * his entry level status (uncharacterized) discharge be characterized as honorable * an appearance before the Board via video or telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 September 1983 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 he feels his discharge characterization is unjust. 3. The applicant enlisted in the Tennessee Army National Guard on 20 May 1978 for a 6-year period. 4. A DD Form 214 (Report of Separation from Active Duty) shows he was released from initial active duty for training (IADT) and returned to the control of the Army National Guard on 3 November 1978. His character of service was honorable. He was credited with 3 months, and 13 days of net active service this period. 5. The applicant's service record contains four Letters of Instruction - Unexcused Absence, which show he was absent from scheduled unit training assembly for the months of September, October, November and December 1981. 6. Orders and his National Guard Bureau (NGB) Form 22 show he was discharged from the Tennessee Army National Guard on 29 September 1982 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 7- 10p and National Guard Regulation 614-1 (Inactive Army National Guard), paragraph 1- 5, for unsuitability. His service was characterized as under honorable conditions (general). He was credited with 4 years, 4 months, and 9 days of net service this period. 7. The applicant enlisted in the Regular Army on 1 April 1983 for a 3-year period. His military occupational specialty (MOS) of choice was 95B (Military Police). 8. The applicant's DD Form 1966 (Record of Military Processing), Section IV (Other Background Data), item 36 (Involvement with Police or Judicial Authorities) notes the applicant was charged with speeding in August 1971. The judge dismissed the charges in traffic court. 9. A DA Form 2496 (Disposition Form), dated 12 May 1983, shows the following derogatory information was identified during a routine Entrance National Agency Check: On 14 November 1979, the applicant was charged with the Unauthorized Temporary Use of a Motor Vehicle. On 6 December 1979, he appeared without counsel and pleaded nolo contendre. Adjudication was withheld. He was placed on four months unsupervised probation and assessed $100.00 in court costs to be paid within 90 days. On 6 March 1980, a capias was issued due his violation of probation (failure to pay court cost). He appeared before counsel, paid the court cost and his probation was terminated. 10. The applicant's platoon sergeant, Staff Sergeant (SSG) provided a statement on 4 June 1983, wherein he states, in effect, [the applicant] performed all duties and training in a highly motivated manner. He took initiative to assist other Soldiers and showed interest in all training. He was a trainee leader. He believed [the applicant] should be allowed to remain in the military and that he would be an outstanding Soldier and Military Policeman. 11. The applicant's commander notified him on 14 June 1983 of his intent to initiate separation actions against the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 7-17, for fraudulent enlistment. 12. The applicant's first sergeant (1SG), provided a statement on 16 June 1983, wherein he states, in effect, he has heard nothing but good comments about [the applicant] in the last two and a half months. He spoke with him about his court case. The 1SG found him to be a sincere, mature person. He has proven himself by his performance. It would be an injustice to the U.S. Army, Military Police Corps and [the applicant] to discharge him from the service. 13. The applicant consulted with counsel on 16 June 1983 and acknowledged that he had been advised of the basis for the contemplated actions to separate him under the provisions of AR 635-200, Chapter 7, and its effects; the rights available to him; and the effect of any action taken by him in waiving his rights. He elected to provide a statement in his own behalf, wherein he states, in effect: a. In October 1979, he was a car salesman employed by Buccaneer Chrysler Plymouth. As he was getting off work, he noticed his assigned vehicle had a flat tire. The sales manager had already left the office. One of the senior salesmen instructed him to take another vehicle home. He put a magnetic license plate on the trunk and proceeded home. b. He was rounding a curve when he met an oncoming car on his side of the road. He steered his vehicle off the road to avoid a head-on collision and struck a utility pole. The other vehicle proceeded down the highway. He stopped another vehicle and had them contact the authorities. c. When the officer arrived, he wrote him a citation for careless driving. On his court date, he went to the courthouse. There were only two ladies working at the front desk. They told him there was no court because of a holiday. One lady looked at his citation and told him it was their mistake and not to worry. That was the last he heard about the citation. 14. The applicant's immediate commander and three successive intermediate commanders formally recommended the applicant be retained in the service although he was culpable of fraudulent entry. 15. The applicant's commander provided an additional memorandum, dated 19 July 1983, to clarify why the applicant failed to indicate the civil court conviction on his DD Form 1966. a. The applicant was required to sign an insurance form requiring a $100.00 deductible if he were in an accident with one of the vehicles belonging to his employer's dealership. b. After the accident, no insurance representative approached him for the deductible. He believed the $100.00 he was required to pay by the court was the deductible fee. c. At the time he filled out the DD Form 1966, he did not believe he had ever been convicted of a misdemeanor. 16. A DA Form 751 (Telephone or Verbal Conversation Record), dated 1 August 1983, shows that upon the request of the Company, Battalion and Brigade Commanders, the applicant was granted a waiver to remain in MOS 95B. 17. The separation authority denied the request for retention on 2 September 1993. He stated, although [the applicant's] concealed offenses only included one incident, he was nevertheless arrested in two different jurisdictions. One set of charges was not yet resolved. Subsequently, the separation under the provisions of AR 635-200, paragraph 7-17 for fraudulent enlistment was approved. 18. The applicant was discharged on 2 September 1983. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, Chapter 7, by reason of fraudulent entry. His service was uncharacterized due to entry level status. He was credited with 5 months and 2 days of net active service this period. 19. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active-duty service. The evidence of record shows the applicant was in an entry-level status at the time of his separation. 20. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 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 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 Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. As such, his DD Form 214 properly shows his service as uncharacterized. 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 :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 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. 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. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 4. 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/NR) 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. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in the 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) AR20220010190 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1