IN THE CASE OF:  	  

		BOARD DATE:  13 January 2015  	  

		DOCKET NUMBER:  AR20140008686 


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 an upgrade of his entry-level discharge to a general discharge.

2.  The applicant states he was told his discharge would be a general discharge and that he would be eligible to have it upgraded.  He further states he is applying for Department of Veterans Affairs (VA) benefits and without a change to his discharge he is ineligible.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 March 1983.

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 complete facts and circumstances of his discharge are not available for review with this case.  However, the applicant provides and his records contain a DD Form 214 for the period ending 1 March 1983, which shows, while a member of the Minnesota Army National Guard (MNARNG), the applicant entered active duty for training on 6 February 1983.  On 1 March 1983, the applicant was relieved from active duty and discharged from the Reserve of the Army.  The narrative reason for his separation was entry-level status performance and conduct.  He received an uncharacterized characterization of service upon completing 26 days of active service.

3.  On 2 January 1986, the applicant completed a DD Form 1966 (Record of Military Processing – Armed Forces of the United States) indicating with his initials that he had never been in any regular or reserve branch of the Armed Forces or in the Army National Guard or Air National Guard.

4.  The applicant enlisted in the Regular Army on 26 February 1986.

5.  On 9 April 1986, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for fraudulent enlistment and he advised the applicant of his rights.  

6.  On 9 April 1986, the applicant acknowledged receipt of the notification of separation action.  He was afforded the opportunity to consult with counsel and he declined the opportunity.  He was advised of the basis of the contemplated action to discharge him.  He waived consideration of his case by a board of officers, waived personal appearance before such board, and elected not to submit a statement on his own behalf.   He acknowledged that he understood as a result of the issuance of a discharge under honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life. 

7.  On 9 April 1986, the applicant's commander initiated separation action against him by reason of fraudulent enlistment.  His commander recommended his immediate discharge under the provisions of paragraph 7-17 of Army Regulation 635-200.  He further noted the applicant's performance since his arrival had been unsatisfactory. 

8.  On 18 April 1986, the separation authority approved the applicant's discharge under the provisions of paragraph 7-17 of Army Regulation 635-200 and ordered the applicant be issued an entry level separation.  Accordingly, the applicant was discharged with an entry-level separation on 22 April 1986. 

9.  His DD Form 214 for the period ending 22 April 1986, shows he was discharged by reason of fraudulent entry, under the provisions of Army Regulation 635-200, paragraph 7-17b(1).  He completed 1 month and 27 days of net active service during this period.  This DD Form 214 also shows in:

* Item 24 (Character of Service) - Uncharacterized
* Item 25 (Separation Authority) - Chapter 7-17b(1), Army                    Regulation 635-200
* Item 26 (Separation Code) - JDA
* Item 28 (Narrative Reason for Separation) - Fraudulent Entry 

10.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Chapter 11 of this regulation, in effect at the 
time, governed the entry level status discharge.  It provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have failed to respond to formal counseling.  The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on the job or service school training, and must not have completed of more than 180 days of active duty on their current enlistment at the time his/her separation action is initiated.  The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  The regulation required an uncharacterized description of service for separation under this chapter.

12.  Army Regulation 635-200, chapter 3, describes the different types of characterization of service.  It states that 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 condition 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.  For the purposes of characterization of service, the Soldier’s status is determined by the date of notification as to the initiation of separation proceedings.  Upon enlistment, a Soldier qualifies for entry level status during the first 180 days of continuous active military service or the first 180 days of continuous active service after a service break of more than 92 days of active service.

13.  Army Regulation 635-200, paragraph 7-17 states 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.  Soldiers separated under this chapter may be awarded an honorable discharge, a general discharge, or a discharge under other than honorable conditions.  If in an entry-level status, the characterization of service will be uncharacterized.  

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation in effect at the time showed that SPD "JDA," as shown on the applicant's DD Form 214 for the period ending 22 April 1986, specified the narrative reason for discharge as "Fraudulent Entry" and the authority for discharge under this SPD was "paragraph 7 of Army Regulation 635-200."

15.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances of his discharge for the period ending 1 March 1983 are not available for review with this case.  However, the applicant appears to have lacked motivation, self-discipline, or showed an inability to adjust to the military environment.  Accordingly, his immediate commander recommended his separation under the provisions of Army Regulation 635-200, chapter 11.  It is presumed that all requirements of law and regulation were met 

and the rights of the applicant were fully protected throughout the separation process.  

2.  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 warrants 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.  

3.  The entry-level separation is given regardless of the reason for separation.  An uncharacterized discharge is neither positive nor negative; it is not "derogatory."  An uncharacterized character of service 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/her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting the applicant's request to change his character of service to either honorable or general.

4.  During his subsequent enlistment process, the applicant indicated that he had never been in any regular or reserve branch of the Armed Forces or in the Army National Guard or Air National Guard.  However, the evidence shows and his commander determined otherwise.  

5.  His immediate commander deemed the applicant's entry on his DD Form 1966 was a misrepresentation and grounds for discharge for fraudulent entry.  Accordingly, his chain of command initiated action for fraudulent entry.  He was ultimately discharged by reason of fraudulent entry.  

6.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

7.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of paragraph 7-17 of Army Regulation        635-200 for fraudulent entry.  Absent the misrepresentation regarding his prior service in the MNARNG, there was no fundamental reason to process him for separation.  The underlying reason for his discharge was his misrepresentation.  The only valid narrative reason for separation permitted under that paragraph is "Fraudulent Entry" and the appropriate separation code associated with this discharge is "JDA" which is correctly shown on his DD Form 214.

8.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making the applicant eligible for veteran's benefits.  In light of the foregoing, the applicant is not entitled to 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)                                         AR20140008686





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ABCMR Record of Proceedings (cont)                                         AR20140008686



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