IN THE CASE OF:	  

		BOARD DATE:  28 August 2012

		DOCKET NUMBER:  AR20120012106 


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 

* Reversal of his discharge and reinstatement as a specialist (SPC)/E-4 in the 09L (Interpreter/Translator) Program; or
* Reversal of his discharge and reinstatement as a SPC/E-4 or private first class (PFC)/E-3 as a Regular Army Soldier; or
* Change the type of separation from "Uncharacterized" to "Honorable"
* A personal hearing

2.  The applicant states following 4 years of active and dedicated service as a contractor with the special forces in Iraq, he received asylum in the United States.  He then volunteered to serve in the Army in the 09L program.  His ability to attend basic combat training was contingent on passing a military intelligence interview called the Counter-Intelligence (CI) Force Protection Screening Interview.  For reasons that he considers wrong, he did not pass the interview and was instead discharged with an uncharacterized character of service.  He was not given the opportunity to appeal or protest this outcome at the time.  Since he served the military with distinction in Iraq and applied to and joined the Regular Army in good faith, he finds his discharge classification unjust and unfair. He further states:

* His prior service to the Army in Iraq was ignored
* The characterization of service makes it nearly impossible to rejoin the military or build a successful career; he is a victim of the system
* He was never sent complete copies of his documents making it hard to submit a proper appeal; thus the request for a personal hearing
* The security interviewer exhibited a hostile attitude toward him; her demeanor, tone, and conduct were unprofessional
* She concluded that he would pose a danger to other Soldiers if deployed - an illogical and erroneous conclusion
* His request for reconsideration was denied without acknowledgement or explanation
* The commanding officer or sergeant interfered in his reconsideration request by recommending he accept the separation
* He was not allowed to appeal to an administrative separation board at any time
* Following the failure of his CI interview by military intelligence, no attempts were made by anyone to determine if the interview was properly conducted
* Military officials were focused on the discharge rather than the appeal process

3.  The applicant provides:

* Separation memorandum from his commander
* Email from the Special Agent in Charge (SAIC)
* Acknowledgement of separation memorandum
* Request for reconsideration
* Approved separation memorandum
* Self-authored chronological listing of events
* Statement from a friend
* Letter from a Reserve captain to a Member of Congress on behalf of the applicant
* Letter of recommendation from another translator
* Letter of recommendation from an English Language Teacher

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) in the rank/grade of private/E-1 on 18 June 2010.  He was discharged from the DEP on 3 August 2010 and enlisted in the Regular Army in the rank/grade of SPC/E-4 for 4 years and 33 weeks on 4 August 2010. 

2.  His DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows he enlisted under:

* U.S. Army Training Enlistment Program (MAVN - Military Accessions Vital to National Interests) (09L - Translator Aide)
* U.S. Army Incentive Enlistment Program (U.S. Army Civilian Acquired Skills Bonus, U.S. Army Cash Bonus)

3.  MAVN is an Army specific program that allows recruiting officials to recruit non-U.S. citizens or green card holders into the 09L program.  Under MAVN, certain asylees, refugees, individuals with Temporary Protected Status (TPS) and nonimmigrants such as international students, can join the military and then immediately qualify for U.S. citizenship.

4.  Candidates take the English Comprehension Language Test (ECLT) and if they score 80 or above, they go directly to basic combat training.  If they score below 80, they attend English as a Second Language (ESL) at Fort Jackson, SC.

5.  He acknowledged he would be required to attend the English Language Training Program.  Accordingly, he was assigned to the Defense Language Institute at Fort Jackson, SC.

6.  On 16 September 2010, by email, a SAIC indicated the applicant received an unfavorable CI screening.  The SAIC indicated the applicant contradicted other statements he made throughout the interview.  The major concern was foreign influence.  His presence incountry was not only a force protection threat to his family but also to other Soldiers and civilians that he may be attached to.  Based on these issues, he received an unfavorable CI screening.  According to Army policy, an 09L must receive a favorable CI screening in order to be considered for the military occupational specialty (MOS). 

7.  On 16 September 2010, by memorandum addressed to the Commander, 120th Adjutant General Battalion, Fort Jackson, SC, the company commander, Company B, 315th Military Intelligence Battalion, Redstone Arsenal, stated that:

	a.  The applicant did not pass the final CI Force Protection Screening Interview by personnel of the Fort Jackson Field Office, B Company, 315th Military Intelligence Battalion, 902nd Military Intelligence Group.

	b.  based on the CI Screener's findings, resulting from information developed during the screening process, the applicant was determined to have numerous issues regarding false or misleading information concerning his personal history and background.  These conditions raise security concerns which resulted in an unfavorable CI Screening. 

8.  It appears his immediate commander initiated separation action against him under paragraph 7-15, chapter 7, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), by reason of erroneous entry.  The immediate commander's notification of separation action is not available for review with this case; however, on 21 September 2010, the applicant acknowledged receipt of the notification of recommendation for separation under paragraph 7-15, chapter 7, Army Regulation 635-200 by reason of erroneous entry.

9.  With this acknowledgement, he submitted to the separation authority a request for reconsideration wherein he stated:

* He wanted an opportunity to conduct another CI Screening with another CI Screener
* The CI Screener made mistakes or misunderstood what was said; she made a mistake in that she concluded his family was in Iran instead of Iraq
* His loyalty was to the United States; he had worked in support of the war effort as an interpreter and never failed in his mission
* He was granted indefinite asylum status by the Department of Homeland Security on 21 December 2009 as a reward for his service to America

10.  On 4 October 2010, the separation authority approved the applicant's recommended discharge under chapter 7 of Army Regulation 635-200 and ordered his term of service be uncharacterized with the issuance of an entry level separation. 

11.  The applicant was discharged on 7 October 2010.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 7, section III, Army Regulation 635-200 by reason of erroneous entry with an uncharacterized character of service.  He completed 2 months and 4 days of creditable active service.  This form shows he received a Reentry (RE) Code of 3.  (An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted).

12.  He submitted: 

	a.  A self-authored chronological listing of events in which he listed some of the questions asked of him by the CI Screener during the interview.  He also listed the dates of counseling by his chain of command and commented on each memorandum or document in his separation packet. 

	b.  Statement, dated 7 November 2010, from a friend who describes the applicant as intelligent, hard working, and loyal.  The author also comments on the CI interviewer's inconsistencies during the CI interview. 

	c.  A letter, dated 18 April 2011, from a Reserve officer to a Member of Congress on behalf of the applicant.  The author describes the applicant's great assistance to Task Force 2nd Squadron, 12th Cavalry in Iraq.

	d.  A letter, dated 9 April 2011, from another interpreter who worked with the applicant in the past.  He describes him as a hard-working individual who tackled all assignments with dedication.  He recommends him for any and all assignments that fit his expertise. 

	e.  A letter, dated 25 September 2011, from an English Language Teacher at Fort Jackson, SC, who opines that the applicant exhibited respect, diligence, and discipline during attendance of his English course.  He passed all tests and he was strongly recommended as a great asset to the Army. 

13.  Army Regulation 635-200 provides for the administrative separation of enlisted Soldiers.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  

	a.  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.

	b.  Paragraph 3-9 states an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

14.  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.  Section III, paragraph 7-15  provides for erroneous enlistments, reenlistments, or extensions and states a Soldier may be separated on the basis of an erroneous enlistment, induction, or extension of enlistment per guidance in chapter 1, section II.  An enlistment, induction, or extension of enlistment is erroneous if all of the following apply:

* It would not have occurred had the relevant facts been known by the Government or had appropriate directives been followed
* It was not the result of fraudulent conduct on the part of the Soldier
* The defect is unchanged in material respects

15.  According to the official website, Headquarters, Department of the Army, Posture Statement, the 09L Interpreter/Translator MOS program was established to recruit native and heritage speakers of specified foreign languages to serve as Interpreter/Translators.  The 09L MOS is open for enlistment into the active component (AC), the Army National Guard, the U.S. Army Reserve, and the Individual Ready Reserve (IRR).  Soldiers who enlisted as 09L have supported operations in Iraq, Afghanistan, and in Africa.  The 09L MOS does not require a security clearance; however, most 09Ls are submitted for a SECRET clearance if they are a U.S. citizen or upon receipt of citizenship.  Applicants complete a National Agency Check with local file and credit checks (equivalent to the background investigation provided for SECRET clearances).  Additionally, Intelligence and Security Command (INSCOM) conducts counterintelligence/force protection screening of all recruits. 

16.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, an Iraqi citizen, previously served as a local national and interpreter accompanying U.S. troops in Iraq.  He applied for and was granted a visa to the United States.  Upon arrival, he applied for asylum and was ultimately granted asylum. 

2.  He enlisted in the Regular Army under the 09L program on 4 August 2010.  As required by INSCOM, he underwent a CI Force Protection Screening which he appears to have failed.  The agent in charge indicated the applicant received an unfavorable CI screening.  The agent also indicated the applicant contradicted other statements he made throughout the interview.  The major concern was foreign influence.  His presence incountry was not only a force protection threat to his family but also to other Soldiers and civilians that he may be attached to.  Based on these issues, he received an unfavorable CI screening.  

3.  The unfavorable CI screen met the criteria for an erroneous entry in that his enlistment would not have occurred had the relevant facts been known by the Army, it was not the result of fraudulent conduct on the part of the applicant, and the defect is unchanged in material respects.  As such, his chain of command initiated separation action against him.

4.  All requirements of law and regulation appear to have been met and his rights were fully protected throughout the separation process.  He was afforded the opportunity to submit a request for reconsideration but his request appears to have been disapproved.  Further, the applicant’s discharge accurately reflects his military service at that time.  He was discharged with an uncharacterized character of service after having served 2 months and 4 days of active service. 

5.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  

6.  The entry-level separation is given regardless of the reason for separation. This uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

7.  Since the applicant was processed out of the Army to standard and received the appropriate characterization of service, there is no reason to reinstate him or change his character of service.  

8.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  

9.  With respect to the personal hearing, the applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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)                                         AR20120012106





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ABCMR Record of Proceedings (cont)                                         AR20120012106



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