1. Applicant's Name: a. Application Date: 9 March 2017 b. Date Received: 10 March 2017 c. Counsel: None * 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, an upgrade would allow use of the "the GI Bill for schooling," specifically, for the daughter's college as the applicant "paid money" during active duty. In a records review conducted at Arlington, VA on 10 January 2020, and by a 3-2 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Fraudulent Entry / AR 635-200, Chapter 7, Section IV / JDA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 16 January 2003 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 November 2002 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant regained custody of her child after signing DD Form 3286-69, dated 9 February 2001, stating that the custody agreement giving guardianship of her child to another adult was intended to remain in full force and effect during the term for which she enlisted. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 10 December 2002 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 22 December 2002 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 February 2001 / 4 years b. Age at Enlistment / Education / GT Score: 27 / HS Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92A10, Automated Logistical Specialist / 1 year, 11 months, 2 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: DA Form 3286-69 (Statement of Understanding for Persons Having Dependents in the Custody of Another), dated 9 February 2001, in pertinent part and in effect, indicates that the applicant certified that her child had been preciously placed and in the custody of another person by court order, and that the custody agreement was and is intended to remain in full force and effect during the term for which the applicant enlisted. CG Article 15, dated 9 September 2002, for disobeying an NCO, SFC H.P., on 1 August 2002, for disobeying an NCO, SFC C.W.A., on 1 August 2002, and for being disrespectful in language towards an NCO, SFC H.P. on 1 August 2002. The punishment consisted of a reduction to E-2 (suspended), forfeiture of $619 (suspended), and 14 days of extra duty and restriction. Civilian Court Order indicates that on 20 September 2002, the probate judge ordered the termination of guardianship of the applicant's daughter, effective 4 November 2002, as a result of the applicant's petition to terminate the guardianship of her daughter. Negative counseling statements for regaining custody of child during the initial enlistment period; attempt to reestablishing custody would violate the terms of the applicant's initial enlistment contract; and failing to be at her appointed place of duty at the prescribed time on numerous occasions. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 9 March 2017; congressional correspondence; memorandum for chaplain, dated 28 June 2002; memorandum for record, dated 5 September 2002; email, dated 20 December 2002. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. REGULATORY CITATION(S): Army Regulation (AR) 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. In pertinent part, paragraph 7-17b(8), stipulates on the misrepresentation of intent with regard to legal custody of children. A Soldier, who was an applicant, without a spouse at the time of enlistment and who executed the certificate required by AR 601-210 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. 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. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JDA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 7, Section IV, fraudulent entry. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JDA" will be assigned an RE Code of 3. Applicable to this specific case are excerpts from Army Regulation 601-210 (Personnel Procurement - Regular Army and Reserve Components Enlistment Program), dated 31 August 2016, which stipulates, in pertinent part, at paragraph 2-10 (Dependents), and paragraph 2- 10b(7), that an applicant does not meet dependency requirements if the applicant is without a spouse and has custody of at least one dependent under the age of 18, but that waiver would not be considered for Regular Army. Paragraph 2-10d further stipulates that the US Army recognizes that some persons for personal reasons have given up custody of a child or children. For this reason, the following rules have been provided so a determination can be made for enlistment purposes. It is not the intent or desire of the US Army to require any person to relinquish custody of his or her children to qualify for enlistment. Under no circumstances will any Army representative advise, imply, or assist an applicant with regard to surrender of custody for the purpose of enlistment. Applicants will be advised that they do not meet the dependent criteria of this regulation and that the Army's mission and unit readiness are not consistent with being a sole parent. Persons who are sole parents would be placed in positions, as any other Soldier, where they are required at times to work long or unusual hours, to be available for worldwide assignment, and to be prepared for mobilization, all of which would create conflicting duties between children and military requirements for the sole parent. Paragraphs 2-10d(1) states that if an applicant is without a spouse and, prior to application for enlistment, the child or children have been placed in the custody or guardianship of the other parent or another adult by court order or by written custody agreement between parents that is valid under State law, and the applicant is not required to pay support for more than three dependents, then the applicant is eligible to process for enlistment. The court order or custody agreement must clearly indicate that the applicant does not have physical custody of any child. In cases of court order or custody agreements that require "involvement" such as medical or education decisions but do not require physical custody of the child, then the additional requirements or involvement should not be considered for eligibility unless such conditions require a mandatory custody period that cannot be fulfilled due to military service. Guardianship documents must very clearly indicate that the guardian has full physical custody and not just a guardianship right or oversight role. The bottom line issue is actual physical custody of the child. Paragraph 2-10d(2) states that those applicants who at time of enlistment indicate they have a child or children in the custody of the other parent or another adult will be advised and required to acknowledge by certification that their intent at time of enlistment was not to enter into the Army, USAR, or ARNG with the express intention of regaining custody after enlistment. Applicants will be required to execute a DA Form 3286 (Statements for Enlistment). All applicants will be advised that if they regain custody during their term of enlistment, they are in violation of the stated intent of their DD Form 4 with annexes. They will (unless they can show cause, such as death or incapacity of the person who has custody) be processed for separation (involuntary) for fraudulent enlistment pursuant to AR 635-200. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of her general (under honorable conditions) discharge to honorable. The applicant's record of service and the issues submitted with her application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of her service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. The record further confirms the applicant executed then DA Form 3286-69 (Statement of Understanding for Persons Having Dependents in the Custody of Another), dated 9 February 2001, which certified that her child had been previously placed and was in the custody of another person by court order, and that the custody agreement was and is intended to remain in full force and effect during the term for which the applicant enlisted. By the procurement of her enlistment through deliberated material misrepresentation and misconduct, the applicant diminished the quality of her service below that meriting a fully honorable discharge. 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, such that she should have been retained on Active duty. The applicant contends her discharge was unjust because the recruiter had informed her that once she arrived at her permanent duty station, she would be able to regain custody of her daughter after housing became available; that the support of her chain of command has been minimal once she inquired about regaining custody of her daughter; and once inquiring about having her daughter accompany her to Germany, she was informed that due to her first enlistment term, her daughter cannot accompany her on a two-year overseas assignment, and subsequently, she was discharged. However, 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 her issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that she may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge. The third party statements rendered by persons providing support for the applicant were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of the statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. The applicant contends that an upgrade of her discharge would allow educational benefits through the use of the GI Bill. However, eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 10 January 2020, and by a 3-2 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / RE-1 Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190015579 1