IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140017114 


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 her under other than honorable conditions discharge to honorable.

2.  The applicant states that prior to her discharge she was dealing with chronic depression and family problems.  These problems became overwhelming and she was unable to function effectively in the Army.  Begrudgingly, she made the wrong choice to leave the service.  She needed help and representation and she did not receive either.  She is not blaming the Army for her transgressions and she takes full responsibility for her actions.  She is requesting a change to her discharge to honorable in lieu of the lack of intervention on her behalf.  Since leaving the service she has been a viable and productive citizen.  The type of discharge she received has prohibited her from being productive.

3.  The applicant provides a character letter.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's records contain the following:

   a.  Orders Number 154-35, issued by the Department of the Army, Special Operations Command on 3 June 1997, honorably discharged the applicant from the U.S. Army Reserve (USAR) effective 7 April 1997, by reason of expiration of term of service.

   b.  A DD Form 1966/3 (Record of Military Processing – Armed Forces of the United States), dated 8 August 1997, which stated in Section VI – Remarks – police checks were conducted, no derogatory information was received

   c.  An Standard Form 86 (Questionnaire for National Security Positions, dated 28 August 1997, which shows in Items 23 (Police Record) and 24 (Your Use Of Illegal Drugs and Drug Activity) she placed an "X" in each "No" block pertaining to any prior charges, convictions, and/or arrests and use of illegal drugs and drug activity

3.  She enlisted in the Regular Army, in pay grade E-3, on 9 September 1997, for 3 years.  She was awarded military occupational specialty 92Y (unit supply specialist).  

4.  A Department of Defense - Defense Investigative Service Report of Investigation, dated 20 January 1998, shows the following civil court actions against the applicant on/for:

* 22 January 1993 - was arrested for trespassing and disorderly conduct; both charges were dismissed on 16 March 1993
* 8 February 1994 - was arrested for possession/distribution of narcotic paraphernalia and hitchhiking; the first charge was dismissed and she was fined $25.00 for the second charge
* 23 February 1994 - was arrested for possession of a controlled drug with the intent to distribute and soliciting for prostitution; charges were referred on 6 May 1994 and she was fined $100.00 and a suspended sentenced to 90 days in jail
* 12 April 1994 - was charged with failure to appear in court
* 23 May 1994 - was fined $50.00 for failing to appear and was sentenced to 5 days in jail

* 3 August 1994 - was found guilty of possession of cocaine, a felony, and was placed on supervised probation until 26 August 1999
* 30 September 1994 - her probation was revoked as the result of a violation and she was sentenced to 7 years imprisonment (4 years suspended) and placed on 5 years of unsupervised probation
* 6 November 1994 - was charged with changing/assuming a false name and was fined $50.00

5.  On 19 February 1998, she accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being failing to go to her appointed place of duty on 23 and 28 January 1998.  Her punishment included a suspended reduction to pay grade E-2 and 14 days of extra duty and restriction.

6.  On 13 March 1998, a bar to reenlistment was initiated against her for being absent without leave (AWOL), making a false statement, being absent from formation, and arriving to work with alcohol in her system.

7.  On 16 March 1998, her suspended punishment of reduction to pay grade E-2 was vacated.

8.  On 30 March 1998, she accepted NJP under Article 15, UCMJ, for being AWOL from 6 through 16 March 1998.  Her punishment included a reduction to pay grade E-1, a suspended forfeiture of $216.00 pay per month for one month, and 14 days of restriction.

9.  On 21 April 1998, the applicant's commander initiated action to separate the applicant for fraudulent entry under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separation), paragraph 7-17a, due to the applicant's deliberate material misrepresentation, omission, or concealment of information, which included concealment of arrests and convictions by civil courts.  He advised the applicant of her rights.

10.  On 28 April 1998, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  She also acknowledged that she could receive an under other than honorable conditions or a general discharge and the results of the issuance of such discharges.  She elected not to submit a statement in her own behalf.

11.  An unconditional waiver of administrative separation board separation under Army Regulation 635-200, chapter 7, paragraph 7-17(a), Fraudulent Entry memorandum, dated 7 May 1998, shows she voluntarily waived consideration of her case by an administrative separation board.

12.  On 15 May 1998, she was reported AWOL. 

13.  On 15 May 1998, the separation authority approved the applicant's discharge and directed to issuance of an under other than honorable conditions discharge.

14.  On 19 May 1998, she was returned to duty from AWOL.

15.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged in pay grade E-1 on 2 June 1998, under the provisions of Army Regulation 635-200, paragraph 7-17, for Fraudulent Entry.  She was credited with completing 8 months and 24 days of active service and time lost from 15 to 18 May 1998.  Her service was characterized as under other than honorable conditions.

16.  She provided a character letter, dated 15 September 2014, wherein an individual (her uncle) attested to the applicant's eagerness to make the military a career and a positive beginning of her life.  At the beginning of the applicant's career, she performed well until she experienced some stressors from home that became overwhelming for her.  Those stressors affected her performance which led to her receiving an under other than honorable conditions discharge.  Subsequently, the applicant entered the Reserves and successfully completed 10 years of service in which she received an honorable discharge.  A change of her under other than honorable conditions discharge would make her eligible for additional services and resources that would assist her in reaching her goals.

17.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for change in her character of service.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 7-17 - a fraudulent entry was 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, could have resulted in rejection.  Upon receiving the recommended action, the separation authority would determine whether fraudulent entry had been completely verified 



and proven.  If the fraudulent entry was verified, the separation authority would direct discharge and issuance of a discharge certificate under other honorable conditions provided the member had waived his/her rights to present the case before a board of officers.
   
   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows upon receipt of a Department of Defense Report of Investigation the applicant's company commander initiated action to discharge the applicant for failing to reveal and concealing her civil convictions.  By regulation, failure to disclose such information constitutes fraudulent entry.  After consulting with counsel, she acknowledged the proposed separation action.  The separation authority approved her discharge and she was discharged accordingly on 2 June 1998.

2.  There is no evidence of record and she provided none showing her discharge was in error or unjust.  She voluntarily waived her right to consideration by an administrative board.  In accordance with paragraph 7-17 of Army Regulation 635-200, the separation authority would direct discharge and the issuance of an Under Other Than Honorable Conditions Discharge Certificate when the member had waived his/her rights to present the case before a board of officers.

3.  Without evidence to the contrary, her administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize her rights.  She was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis to support granting her 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)                                         AR20140017114





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017114



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1