IN THE CASE OF:  	  

		BOARD DATE:  9 July 2015	  

		DOCKET NUMBER:  AR20140020121 


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 reconsideration of his earlier request for an upgrade of the characterization of his discharge from entry level to honorable. 

2.  The applicant states, in effect, he was discharged on 30 May 1985 for fraudulent entry.  He is now submitting a document from the Rocky River Municipal Court in Cuyahoga County, OH, showing the charges were dismissed on 10 June 2014.  Although he does not have any confirming documentation (because none shows up on the court website), the County Court also dismissed the charges.   These actions were supposed to have been done at the time of the incidents in 1982 but they were not.  The fact that the court records existed when they should not have to, led to his discharge. 

3.  The applicant provides a statement from the Rocky River Municipal Court in Cuyahoga County, OH.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140003471, on 6 November 2014.

2.  The applicant provides a statement from the Rocky River Municipal Court in Cuyahoga County, OH, which was not previously considered.  As such, it is considered new evidence and warrants consideration by the Board. 
3.  The applicant's records show he was arrested for rape, kidnapping, and felonious assault in 1982.  In March 1984, he was tried and found guilty of assault and he was sentenced to 6 months of confinement.

4.  He enlisted in the Regular Army on 27 December 1984 for a 3-year term.  He completed a DD Form 1966/5 (Record of Military Processing) in connection with his enlistment.  He answered in the negative to the questions: 

* Have you ever been arrested, charged, cited (including traffic violations) or held by law enforcement or juvenile authorities in the United States or in a foreign country regardless of whether the citation or charge was dropped or dismissed or you were found not guilty? 
* As a result of being arrested, charged, cited, or held by law enforcement or juvenile authorities, have you ever been convicted, fined, or forfeited bond or adjudicated a youthful offender or juvenile delinquent? 

5.  The applicant's records also show he completed his training and was awarded military occupational specialty 94B (Food Service Specialist).  He was assigned to the U.S. Army Quartermaster Brigade, Fort Lee, VA. 

6.  On 20 May 1985, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him for fraudulent entry under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 7.  The unit commander based his recommendation for separation on the following:

* the applicant failed to list any arrests for kidnapping, rape, and felonious assault as well as his conviction for assault on his enlistment contract
* this made his enlistment fraudulent
* his actions violated the Army's standards and rendered him unfit for further service

7.  On 20 May 1985, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He waived consideration of his case by a board of officers, waived his right to appear before a board of officers, and elected to submit statements in his own behalf.  He acknowledged he understood:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

8.  He submitted a statement on his own behalf.  He stated although he understood he was not entitled to an administrative elimination board, he wanted one.  He added that he had been charged with rape, kidnapping, and felony assault but he was found not guilty on all counts.  However, his lawyer had made a guilty plea agreement to the simple assault and as such he was found guilty of this charge.  He concluded that he liked the Army and he believed he was a dedicated Soldier.   He acknowledged his poor judgment in not listing the previous charges and asked to be given a chance to correct his mistakes. 

9.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him in accordance with paragraph 7-17 of Army Regulation 635-200 due to fraudulent enlistment (failure to report arrests by civilian police and conviction for assault).  The intermediate commander recommended approval of the discharge.

10.  Consistent with the chain of command's recommendations and following a legal review for legal sufficiency, the separation authority approved the administrative discharge and ordered the applicant discharged under the provisions of paragraph 7-17 of Army Regulation 635-200 by reason of fraudulent enlistment (failure to report arrests by civilian police and conviction for assault) and directed he received an entry level separation. 

11.  The applicant was discharged on 30 May 1985 for fraudulent entry under the provisions of Army Regulation 635-200, chapter 7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 months and 4 days of creditable active service.  His DD Form 214 shows in item 24 (Character of Service) – "ENTRY LEVEL STATUS."

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

13.  He provides a document, dated 10 June 2014, from the Rocky River Municipal Court in Cuyahoga County, OH, that states the offense of "theft" came for a hearing and the Court dismissed the case. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention.  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 service will be uncharacterized.  Entry-level status is defined as the first 180 days of continuous active service.

	b.  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.

	c.  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.

	d.  Paragraph 3-9 (Uncharacterized Separation) of the version in effect at the time stated a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier 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.  This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government and Secretarial plenary authority.  For Regular army Soldiers, entry level status means within 180 days of active duty. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant concealed a previous civil arrest and/or conviction upon his enlistment in the Regular Army.  When this information surfaced, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of Army Regulation 635-200, chapter 7, due to his fraudulent entry. 

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  His discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.   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 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.  

4.  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.

5.  Because there is no error or injustice in his case, the applicant should not be granted 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 to amend the decision of the ABCMR set forth in Docket Number AR20140003471, on 6 November 2014.



      _______ _   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)                                         AR20140020121





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ABCMR Record of Proceedings (cont)                                         AR20140020121



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