IN THE CASE OF: BOARD DATE: 13 April 2010 DOCKET NUMBER: AR20090013171 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests his 24 April 2001 discharge from the Tennessee Army National Guard (TNARNG) be voided and he be reinstated as a warrant officer (WO). 2. The applicant's arguments and evidence are provided by counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests the applicant's 24 April 2001 discharge from the TNARNG be voided and that the applicant be reinstated as a WO. 2. Counsel states the applicant concealed no information during his enlistment processing for the TNARNG and his recruiter followed all recruiting procedures in processing an enlistment waiver to effect the applicant's enlistment in the TNARNG. 3. Counsel states the regulatory criteria to establish a fraudulent enlistment requires there be a deliberate omission, misrepresentation, or concealment of fact, which did not occur in this case. As a result, the applicant's discharge should be voided and he should be reinstated in the TNARNG and credited with all service completed. Counsel further states that the applicant meets all the technical requirements to be a WO and should be reinstated as such. 4. Counsel provides a brief with 14 identified documents as enclosures. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's record shows he was commissioned a second lieutenant from the Reserve Officers' Training Corps (ROTC) program in July 1979. He served in a commissioned officer status until 28 September 1982. 3. On 3 January 1983, the applicant enlisted in the Regular Army, in the rank of private first class. He completed basic combat training and was assigned to Fort Rucker, AL, as a WO candidate, in March 1983. 4. On 3 January 1984, upon his arrival at Fort Bliss, TX, the applicant informed two noncommissioned officers he was a homosexual and he wanted out of the Army. He was counseled on the consequences of his admission and statements by seven members of the command, including the unit first sergeant, unit commander, battalion commander, brigade chaplain, and an Army psychiatrist. Subsequent to receiving this counseling, he continued declaring himself a homosexual and his desire to be discharged. He completed an affidavit attesting to his homosexuality, his prior homosexual activity, and his intention to continue his homosexual activities. 5. On 27 January 1984, the applicant was discharged in the rank of PFC under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 15-3b, by reason of admission of homosexuality. He received a general, under honorable conditions discharge (GD). The original DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued listed a Separation Program Designator (SPD) code of JKB and a reentry (RE) code of 3. 6. On 21 August 1996, this Board denied the applicant's request to change the authority and reason for his discharge and the corresponding assigned SPD and RE codes. However, the Board noted an administrative error in the SPD code assignment of JKB on the DD Form 214 and recommended an administrative correction to show the correct SPD code of JRB and a new DD Form 214 reflecting this SPD code was issued. 7. On 17 April 2001, an NGB Form 22-3 (Request for Waiver) was submitted on the applicant. It stated the applicant's disqualification was misconduct. In the statement he provided along with this request, the applicant stated he was discharged because he did not want to be in his flight class and because he received an amount of demerits in excess of the total received by the rest of his class. He further stated that out of immaturity, he responded by demanding discharge. The applicant failed to admit to homosexual conduct and/or to indicate this was the basis for his discharge. 8. On 18 April 2001, The Adjutant General of the State of Tennessee approved a misconduct waiver to the applicant to allow his enlistment in the TNARNG. The waiver approval indicates the applicant was discharged for misconduct and was the result of his not wanting to be in his flight class and receiving demerits in excess of the entire class. 9. On 24 April 2001, the applicant enlisted in the TNARNG, in the rank/grade of specialist (SPC)/E-4, for 2 years. 10. TNARNG Orders 254-117, dated 11 September 2003, directed the applicant's discharge from the TNARNG, effective 24 April 2001, with a GD. 11. On 18 May 2004, the applicant's recruiter provided a memorandum in support of the de facto status request for the applicant. She indicates the applicant revealed the reason for his previous discharge from the Army and all the circumstances surrounding it. She further states she requested and received a REDD (recruiter eligibility data display) response indicating his SPD was JKB and the reason for his separation was misconduct. As a result, he was eligible for a waiver. She further indicates at no time did either she or the applicant try to deceive or conceal information during the waiver process. 12. In connection with the processing of this case, on 24 December 2009, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau (NGB). The advisory official recommends denial of the applicant's request to void his discharge from the TNARNG of 24 April 2001 and to be reinstated in the ARNG as a WO. The advisory official opinion states: a. The applicant was discharged from the RA on 27 January 1984 by reason of "admission of homosexuality" and received a GD; b. Based on the authority and reason for the applicant's discharge, his assigned SPD code should have been JRB with an RE code of 3; c. An administrative correction by the ABCMR in 1996 resulted in a correction to the SPD code on the applicant's DD Form 214 to the correct code of JRB and the applicant was informed of this correction on 11 September 1996; d. Upon presentation for enlistment in the TNARNG in 2001, the applicant provided his original DD Form 214 with the incorrect SPD code of JKB (misconduct); e. During the initial interview with the applicant, the recruiter believed the applicant was totally honest and forthcoming with the information provided and as a result began the process of establishing the applicant's eligibility for enlistment; f. The recruiter assessment of the applicant was based on her belief the assigned SPD code was JKB (misconduct) and a waiver for enlistment was processed on this basis; g. Four years later, upon receipt of the applicant's RA record, TNARNG officials discovered information in the applicant's record that formed the basis for the fraudulent entry discharge; h. The regulatory criteria establishes deliberate material misrepresentation, omission, or concealment of information known at the time of enlistment that could have resulted in rejection as a basis for a fraudulent entry discharge; i. The applicant received the 1996 results of the ABCMR and was aware his SPD code had been changed to JRB and still presented his DD Form 214 with the SPD code of JKB when processing for enlistment in the TNARNG in 2001; and j. The applicant failed to present the ABCMR decision or DD Form 215 (Correction to DD Form 214) to his recruiter when processing for enlistment. 13. The advisory official finally states there is no evidence demonstrating the existence of error or injustice related to the applicant's 2001 discharge from the TNARNG. Therefore, the applicant is not entitled to the requested relief. 14. On 15 January 2010, counsel responded to the NGB advisory opinion. He states the NGB opinion fails to account for the timeline, actions, and statements of all parties familiar with the enlistment process and presents the following argument: a. The applicant presented the most recent copy of his DD Form 214 to his recruiter; b. The recruiter obtained a REDD response, including SPD and RE codes, from the Army Personnel Center and was able to secure an enlistment waiver for the applicant; c. To be separated for fraudulent enlistment there has to be a deliberate omission, misrepresentation, or concealment of fact, and the NGB opinion concludes the applicant concealed a memorandum from the ABCMR from his recruiter and commander in order to meet this regulatory burden of proof; however, the recruiter and commander completed statements during the de facto status process confirming the applicant's honesty during his enlistment processing; d. There is a presumption the Army maintains accurate records and updates information from the ABCMR as directed; e. It is unlikely the applicant knew the separation code on his DD Form 214 was one that would allow him to enlist; f. Six years after the ABCMR decision, the applicant had no reason to suspect the REDD response would show anything other than being separated for homosexuality and did not question the results; g. The fact the codes were not corrected was due to an administrative error and all parties during the enlistment process proceeded on the theory things were correct; h. The NGB advisory opinion fails to address the procedural due process portion of the applicant's claim and proper separation procedures were not followed in the applicant's case; i. The applicant received a telephone call telling him he was discharged and he received an NGB Form 22 showing his discharge date of 24 April 2001 which was the same date of his enlistment; j. The applicant was credited with 1 day of service at the time of his discharge even though he completed the National Guard "Try-one" Program enlistment option [1-year enlistment], plus an additional year and several months of service but was discharged with no credit for this service when discharged; k. The regulatory procedural requirements applicable in the applicant's case required he be advised of the presumption he has a propensity to engage in homosexual activity, and given the opportunity to rebut the presumption by presenting evidence demonstrating he/she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts; l. Clearly the applicant was denied the regulatory procedural due process rights associated with his discharge processing given he was notified of his separation the same day he was discharged. 15. Counsel finally argues the applicant's command requested his reinstatement based on his performance. The request for his de facto status stated he was a good Soldier and would still be serving if he had been allowed to stay. These facts show the applicant was honest and upfront with his recruiter and commander about the reason for his discharge and the erroneous information allowing his enlistment was from Army personnel command. The applicant was denied due process regarding his separation and requests reinstatement in the ARNG with credit for time served, or in the alternative, a discharge with credit for time served with an appropriate narrative reason for separation of expiration of term of service and an RE code of 1. 16. National Guard Regulation 600-200 (Army National Guard Enlisted Personnel Management) establishes standards, policies, and procedures for the management of enlisted Soldiers of the ARNG. Chapter 8 contains the policy for enlisted separations from the ARNG. It states the separation of a Soldier from the ARNG is a function of State military authorities in accordance with State laws and regulation. 17. Army Regulation 135-178 (Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Chapter 3, section II provides guidance on separation using the notification procedure. It states when the notification procedure is required under a reason for separation cited in this regulation, the commander will notify the Soldier, in writing, as established in this section of the regulation. 18. Chapter 7 of the Reserve enlisted separations regulation contains guidance on separation for defective enlistments and reenlistments. Paragraph 7-4 contains guidance on fraudulent enlistments or reenlistments and states a Soldier may be separated on this basis of procurement of a fraudulent enlistment or reenlistment through any deliberate material misrepresentation, omission, or concealment which, if known at the time of enlistment or reenlistment might have resulted in rejection. This includes all disqualifying information requiring a waiver. 19. The same regulation stipulates in order to establish fraud, it will be determined if previously concealed information is in fact disqualifying based on criteria for enlistment/reenlistment. Any waivable or nonwaivable disqualification concealed, omitted, or misrepresented constitutes fraudulent entry. If the material misrepresentation includes pre-service and prior-service homosexual conduct the standards and procedures for standards for homosexual conduct separations will be followed. The separation authority for members of the ARNG separated under this provision of the regulation is State Adjutants General. 20. Chapter 10 of the same regulation contains the policy for separating members for homosexual conduct. Paragraph 10-3 contains discharge criteria and states discharge is appropriate on this basis if the Soldier engaged in, attempted to engage or solicited another person to engage in a homosexual act pr acts. It further states a statement from a Soldier admitting they are a homosexual creates a rebuttable presumption the Soldier engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. A Soldier may rebut this presumption by presenting evidence demonstrating he/ she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. The Soldier bears the burden of rebutting the presumption. In determining whether a Soldier has successfully rebutted the presumption, some or all of the following may be considered: * Whether the Soldier has engaged in homosexual acts * The Soldier's credibility * Testimony from others about the Soldier's past conduct, character, and credibility * The nature and circumstances of the Soldier's statement * Any other evidence relevant to whether the Soldier is likely to engage in homosexual acts 21. Department of Defense Instruction (DODI) 1332.28 provides discharge review procedures and standards. Enclosure 4 outlines discharge review standards. It states the objective of the discharge review is to examine the propriety and equity of the applicant's discharge. It also states a discharge shall be deemed proper unless it is determined an error of fact, law, procedure, or discretion exists associated with the discharge at the time of issuance; and the rights of the applicant were prejudiced. Such an error will constitute prejudicial error if there is substantial doubt the discharge would have remained the same if the error had not been made. DISCUSSION AND CONCLUSIONS: 1. The contention that the applicant's fraudulent entry discharge was unjust and his due process rights were violated has been carefully considered. However, by regulation, the authority to separate members of the ARNG for fraudulent enlistment rests with the State Adjutant General. 2. In this case, State officials supported the applicant's discharge. The approval of the discharge by State officials at the time, their continued endorsement of it now, and the approval of the NGB, support a conclusion that even if processing errors had been made the discharge would have remained the same. However, there is no evidence that errors were made in the processing of his discharge. 3. The evidence of record confirms the applicant was informed of the 1996 decision of this Board to correct his SPD code to reflect his RA discharge was the result of homosexual conduct when he applied for enlistment in the TNARNG in 2001. The enlistment waiver by TNARNG recruiting officials in 2001 was based on the fact the applicant was discharged from the RA for misconduct. 4. The waiver packet shows TNARNG recruiting personnel were unaware of the real reason for the applicant's discharge from the RA and processed the waiver based only on the SPD code for misconduct in the record, or they intentionally misrepresented the reason for discharge in order to obtain the waiver. In either case, the statement completed by the applicant to accompany the waiver request shows a deliberate omission, concealment, or misrepresentation on his part. 5. The applicant's waiver statement indicates the reason for his RA discharge was his receipt of an excessive amount of demerits. This leads one to believe the misconduct basis for the waiver is correct. The statement also indicates his demand to be discharged was the result of his immaturity. This strains credibility given he had completed ROTC, completed around 3 years of prior service as a commissioned officer, and was nearly 25 years old at the time. 6. In addition, prior to his RA discharge, the applicant was counseled on the consequences of his actions by at least seven members of his command, including the unit first sergeant, unit commander, battalion commander, brigade chaplain, and an Army psychiatrist. As a result, there is no reason to believe his admission of homosexual conduct was not true. 7. Further, although there were recordkeeping problems, this did not absolve the applicant of his responsibility to be forthcoming and truthful during his enlistment processing in 2001, and he clearly was not. As a result, there is an insufficient evidentiary basis to support granting the requested relief. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________X__________ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20090013171 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090013171 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1