IN THE CASE OF:	   

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20140004144 


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, in three separate applications, correction of his Army Military Human Resource Record (AMHRR) by:

	a.  amending his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 14 October 1982 to 26 January 1983 to show his service characterization as honorable;

	b.  amending his DD Form 214 for the period ending on 2 March 1998 to show his service characterization as honorable; and

	c.  removing documentation from his records indicating his 1997 enlistment in the U.S. Army Reserve (USAR) was fraudulent.

2.  The applicant states he completed basic training and was later issued an Honorable Discharge Certificate by the Department of the Army in the late 1980's or early 1990's when he completed his Individual Ready Reserve (IRR) service.  Unfortunately, he does not have a copy of that certificate to submit with this application.  However, he contends he is a Gulf War veteran and has more than fulfilled his obligation to his country.  He further states that he knew nothing about his enlistment in the USAR being considered as fraudulent.  This information surfaced when his records were reviewed during a security clearance investigation.  He contends that the subject enlistment was not fraudulent.

3.  The applicant provides a copy of a DA Form 1059 (Service School Academic Evaluation Report), dated 26 February 1998.
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.  At the time of his applications, the applicant was actively serving as a warrant officer two in the Army National Guard.

3.  On 14 October 1982, the applicant enlisted in the Regular Army.  He was assigned to Fort Dix, New Jersey for initial training.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he completed basic combat training at the end of December 1982 and was immediately enrolled in advanced individual training (AIT) on 3 January 1983 for training in military occupational specialty (MOS) 94B (Cook).

5.  Four DA Forms 4856 (General Counseling Form) dated 6, 7, 8, and 9 January 1983, state the applicant lacked motivation and self-discipline to continue in the military.  The counseling forms indicate the applicant acknowledged he could not handle the military way of life because he had personal problems and he wanted to be discharged.

6.  On 14 January 1983, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 11, Trainee Discharge Program, due to entry level status performance and conduct.  The commander based this action on the applicant's refusal to adapt both socially and emotionally to military life.  He had demonstrated character and behavior traits which were not compatible with military service.  He lacked the motivation and self-discipline required to continue in the military service.

7.  The applicant waived consulting counsel.  He did not desire to submit a statement on his own behalf.

8.  The appropriate authority approved the recommendation for separation.
9.  Accordingly, he was released from active duty (REFRAD) on 26 January 1983 and transferred to the USAR Control Group (Annual Training).  His DD Form 214 for this period of service reports his service was uncharacterized.  He was assigned a reenlistment (RE) code of 3.  He had completed a total of 3 months and 13 days of creditable active duty service.

10.  The applicant's records show he had a break in military service from 
27 January 1983 to 9 February 1997.  Records also show that during this period he completed 4 years of college and received a Bachelor of Science degree in Physiology from the University of Tennessee.

11.  On 2 January 1997, the U.S. Army Recruiting Battalion Nashville, Tennessee, requested a waiver of the applicant's RE code of 3 for the purpose of enlisting in the USAR.  This waiver was approved on 28 January 1997, providing he was otherwise qualified for enlistment.

12.  On 10 February 1997, the applicant enlisted in the USAR for a period of 
6 years, beginning in the rank of specialist, pay grade E-4.

13.  Orders 27-7, Military Entrance Processing Station (MEPS), Nashville, TN, dated 10 February 1997, ordered the applicant to initial active duty training with a reporting date of 13 March 1997 for training in MOS 75H (Personnel Specialist).  

14.  Orders 53-9, MEPS, TN, dated 17 March 1997, revoked the above orders.

15.  A memorandum for the applicant from the Commander, 678th Personnel Services Battalion, Nashville, TN, dated 21 March 1997, informed the applicant that separation action was being initiated based on his concealment of having been convicted of passing a worthless check.  This memorandum afforded the applicant the opportunity to consult with counsel and to submit a statement in his own behalf.  He was given a 30-day period to acknowledge this action.  The memorandum was sent by certified mail and delivery attempted on 25 March 1997.  There is no evidence of record showing the applicant ever received or acknowledged this memorandum.  There is no evidence of record showing what further action was taken on this matter.

16.  Orders 132-31, 81st Regional Support Command, dated 12 May 1997, discharged the applicant from the USAR effective 4 June 1997 under the provisions of Army Regulation 135-178, chapter 9 for fraudulent entry.



17.  A DD Form 4 (Enlistment/Reenlistment Document), dated 29 September 1997, shows the applicant enlisted in the USAR for 7 years beginning in the rank of specialist, pay grade E-4.  The remarks section of this form shows his enlistment on 10 February 1997 but makes no mention of his discharge on
4 June 1997.  

18.  On 5 November 1997, he entered active duty training (ADT).

19.  A DA Form 1059, as provided by the applicant, shows he completed the Information Systems Operator Analyst Course at the Computer Science School, Fort Gordon, Georgia from 17 November 1997 to 2 March 1998 (106 days).  This is a resident training report.

20.  A DD Form 214, ending on 2 March 1998, reports that the applicant was released from ADT and transferred back to his USAR unit.  He had completed 3 months and 28 days of ADT.  His service was uncharacterized.  He had completed his required active duty.

21.  On 3 March 1998, the applicant was reassigned to his troop program unit.

22.  A DD Form 4, dated 29 July 1999, shows the applicant enlisted in the Regular Army for 3 years in the rank of specialist, pay grade E-4.

23.  A DD Form 1966/3, dated 29 July 1999, shows prior to his Reserve enlistment information concerning two bad checks were revealed.

24.  A DD Form 4, dated 17 August 2001, shows the applicant reenlisted in the Regular Army for 4 years in the rank of sergeant, pay grade E-5.

25.  A DD Form 4, dated 20 July 2005, shows the applicant enlisted in the Army National Guard for 6 years in the rank of staff sergeant, pay grade E-6, to be effective upon his separation from active duty.

26.  A DD Form 214, ending on 16 August 2005, shows the applicant was honorably discharged due to completion of required active service.  He completed 6 years and 18 days of creditable active service.

27.  Special Orders Number 68, National Guard Bureau, dated 23 February 2012 show the applicant was appointed as a warrant officer one effective 29 June 2010.  His DD Form 214 ending on 18 January 2013 shows his effective date for this appointment as 20 October 2011.

28.  Army Regulation 135-178 (Separation of Enlisted Personnel, Army National Guard and Army Reserve) as in effect at the time, provides in chapter 9 for separation due to defective enlistments/reenlistments.  The concealment of conviction by civil court is considered as a valid basis for initiation of separation processing for fraudulent entry.

29.  Army Regulation 635-200 (Personnel Separations), chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status.  It states that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  Entry level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.  A determination on a case-by-case basis may be made that characterization of service is honorable providing there is a clear presence of unusual circumstances involving personal conduct and performance of duty that warrants such determination.

30.  Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management) provides that all personnel information recorded under the authority of this regulation is the property of the United States Government.

	a.  Information will not be removed except as provided by law or this regulation.

	b.  Once placed in the AMHRR, the document becomes a permanent part of that file. The document will not be removed from, or moved to another part of the OMPF unless directed by one or more of the following:

* The ABCMR
* Chief, Appeals and Corrections Branch, U.S. Army Human Resources Command (HRC)
* The AMHRR custodian when documents have been improperly filed
* Commander, HRC, ATTN: HRC-PDO-PO, as an approved policy change to this regulation
* Chief, Appeals Branch, National Guard Personnel Center



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he received two DD Forms 214 with uncharacterized service that he believes should be changed to show honorable service.  He further contends that documentation referring to a fraudulent enlistment in the USAR should be removed from his AMHRR.

2.  The evidence of record clearly shows that the applicant was REFRAD on 
26 January 1983 and transferred to the USAR while still in an entry level status.  He had not completed AIT because he refused to adapt both socially and emotionally to military life.  His REFRAD was prior to 180 of continuous active military service.  Therefore, his service for this period was appropriately described as "uncharacterized."  An honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  There are no such circumstances present in his record.  As a result, a change to the characterization of his service to honorable is not warranted.

3.  The available evidence shows the applicant's commander sent him a memorandum, dated 21 March 1997, informing him that he had concealed his conviction for passing a worthless check.  This memorandum afforded him the opportunity to consult with counsel and to submit a statement in his own behalf.  There is no evidence of record showing the applicant ever received or acknowledged this memorandum.  There is no evidence of record showing what further action was taken on this matter.  Furthermore, there is no evidence showing that the content of this memorandum was in error or that the action was terminated.  For historical purposes the Army has an interest in maintaining the accuracy of its records.  The information contained in those records must reflect the conditions and circumstances that existed at the time the records were created.

4.  The available records show the applicant was on active duty for 3 months and 28 days (144 days) from 5 November 1997 to 2 March 1998 for ADT.  During this period he completed the resident Information Systems Operator Analyst Course at the Computer Science School, Fort Gordon, Georgia.  The applicant's 
DD Form 214 for this period of service shows his service as uncharacterized.

5.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise for that period of service.  Furthermore, each DD Form 214 is a reflection of only the period covered by that report.  Periods of ADT that do not meet or exceed 180 days of active service are uncharacterized.
6.  In view of the foregoing, the applicant's requests should be denied.

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)                                         AR20140004144



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ABCMR Record of Proceedings (cont)                                         AR20140004144



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