IN THE CASE OF: Mr. BOARD DATE: 3 June 2013 CASE NUMBER: AR20130000149 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief. Presiding Officer I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case. THE APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his discharge from general, under honorable conditions to honorable. 2. The applicant states, in effect, that he is currently the president and CEO of a company. He asks for an upgrade of his discharge in order to obtain better employment and for the honor and distinction of being honorably discharged. He alleges that he disclosed the fact he had been charged but was told not to discuss it until he had cleared the MEPS. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 26 December 2012 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 7 February 2000 d. Reason/Authority/SPD/RE Code: Fraudulent Entry, AR 635-200, Chapter 7, Section V, JRA, RE-3 e. Unit of assignment: B Co, 526th Forward Support Bn, Fort Campbell, KY f. Current Enlistment Date/Term: 2 June 1997, 3 years g. Current Enlistment Service: 2 years, 8 months, 6 days h. Total Service: 5 years, 11 months, 23 days i. Time Lost: None j. Previous Discharges: ARNG (940214-970601), NIF, per DA Form 2-1 ADT (950928-960717), HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 45G10, Fire Control Systems Repairer m. GT Score: 98 n. Education: HS Graduate o. Overseas Service: Korea p. Combat Service: None q. Decorations/Awards: NDSM, ASR, OSR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant served in the Army National Guard from 1994 until 1997. On 2 June 1997, he enlisted in the Regular Army for a period of 3 years. He was 20 years old at the time of entry and a high school graduate. His record reflects he served in Korea and completed a total of 5 years, 11 months and 23 days of active and inactive service. His record does not reflect any significant achievements or acts of valor. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record shows that on 7 December 1999, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 7, AR 635-200, by reason of fraudulent enlistment, specifically for executing a questionnaire for national security positions (SF86), wherein he failed to report any illegal drug usage or criminal conduct. 2. Based on the fraudulent enlistment, the unit commander recommended a general, under honorable conditions discharge. 3. On 14 December 1999, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement on his behalf. The unit commander subsequently recommended separation from the Army. The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge. 4. On 10 January 2000, the separation authority approved the separation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was separated on 7 February 2000, under Army Regulation 635-200, Chapter 7, Section V, with a general, under honorable conditions discharge, an SPD code of JDA, and an RE code of 3. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: A Memorandum from US Army Central Personnel Security Facility dated 10 September 1999, that indicates the intent to revoke the applicant’s security clearance based on the following incidents that were not disclosed during the enlistment process: a. On 3 August 1996, charged with three counts of larceny (felonies) b. On 8 August 1996, charged with possession of marijuana and convicted of possession of paraphernalia on 25 September 1996. c. On 1 June 1997, charged with driving under the influence. The applicant failed to appear in court. d. On 11 April 1999, executed a questionnaire for National Security positions wherein he failed to report any illegal drug usage or other criminal conduct. He certified his statements were true and correct to the best of his knowledge. e. On 29 March 1999, during an investigation interview he authored a sworn statement denying any drug use. He also denied any knowledge about the 1996 larceny charges and acknowledged never appearing in court for the 1996 DUI charge. f. During an interview on 13 May 1999, he admitted to providing false information during the previous interview and fraudulently enlisting in the Army because he was afraid he would not be allowed to join. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided 3 letters of recommendation and a DD Form 214. POST-SERVICE ACTIVITY: The applicant states he is the president and CEO of a company. REGULATORY AUTHORITY: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 7, paragraph 7-17 provides, in pertinent part, that 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. 2. Soldiers separated under Chapter 7 may be awarded an honorable discharge, general, under honorable conditions discharge, or a discharge under other than honorable conditions. If in an entry level status, the discharge will be uncharacterized. 3. Army Regulation 635-200, paragraph 3-7a, provides that 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. Whenever there is doubt, it is to be resolved in favor of the individual. 4. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record confirms the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. By the procurement of his enlistment through deliberate material misrepresentation, the applicant diminished the quality of his service below that meriting a fully honorable discharge. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. 4. The analyst noted the applicant's issue about his desire to get better employment; however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. 5. The applicant alleges he was told not to discuss any of his civilian charges in order to clear the MEPS. However, this is contradictory to his admissions contained in his official record. A document in the official record indicates the applicant during an interview on 13 May 1999, admitted to providing false information during the previous interview and fraudulently enlisting in the Army because he was afraid he would not be allowed to join. There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the applicant produced any evidence, to support his allegations that he was told not to disclose his past criminal activities. The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence to support his allegations. 6. The records show the proper discharge and separation authority procedures were followed in this case. 7. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Record Review Date: 3 June 2013 Location: Washington, DC Did the Applicant Testify? No Counsel: I.D. Williams, 2706 Chamberlain Avenue, Richmond, VA 23222 Witnesses/Observers: N/A Board Vote: Character Change: 0 No Change: 5 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: No Change Characterization to: No Change Change Reason to: No Change Change Authority for Separation: NA Change RE Code to: NA Grade Restoration to: NA Other: NA Legend: AMHRR - Army Military Human Resource Record FG - Field Grade IADT – Initial Active Duty Training RE - Reentry AWOL - Absent Without Leave GD - General Discharge NA - Not applicable SCM- Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial CG - Company Grade Article 15 HD - Honorable Discharge OAD - Ordered to Active Duty UNC - Uncharacterized Discharge CID - Criminal investigation Department MP – Military Police OMPF - Official Military Personnel File UOTHC - Under Other Than Honorable Conditions ADRB Case Report and Directive (cont) AR20130000149 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1