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ARMY | DRB | CY1999 | 1999025592
Original file (1999025592.rtf) Auto-classification: Approved
PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: Not Applicable

2. Date of discharge (or REFRAD): (Release from custody & control of the Army)/
920710
3. Authority for separation:

         a. Regulation: Chapter 7, AR 635-200

          b. Reason: Fraudulent Entry
4. Prior review(s): NONE


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            AAM(2)
a. Period entered for: 3 Years NDSM
b. Entry date: 900418 SWASMw/2BSS
c. Age: 20 Years DOB: 690702 KLM
d. Educational level: HS Grad ASR
e. Aptitude area score:
          GT: 99 3. Highest grade achieved:
f. Length of Service: E4
2 Year(s) 2 Month(s) 23 Day(s)

4. Performance evaluations:
NONE

PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence: NONE

 Status Inclusive dates
         AWOL

         Mil conf

         Civil conf

         Other


6. Nonjudicial punishment: NONE
         Date     Offense(s)
        


7. Court-Martial data: NONE
         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: Arrested by civilian authorities and charged with conspiracy to import, distribute, and possess cocaine with intent distributing during 1988 and 1989.


SECTION B - Prior Service Data
NONE

Other discharge(s):

          Service   From      To        Type Discharge





PART IV - PREHEARING REVIEW

SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:

          a. The evidence of record shows that on 17 June 1992, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 7, AR 635-200 for fraudulent entry, with a void term of service. He was advised of his rights. The applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his behalf. The unit commander subsequently recommended approval of the discharge action and forwarded it through command channels to the separation authority. The intermediate commander reviewed the proposed discharge action and recommended approval. The separation authority directed that the applicant be discharged with a void characterization of service.

         b. On 10 July 1992, the applicant was discharged, under the provisions of Chapter 7, AR 635-200, by reason of fraudulent entry. The DD Form 214 (Certificate of Release or Discharge From Active Duty) issued to him at the time of his discharge indicates the following: Type of Separation - "Release From Custody and Control of the Army"; Character of Service - "Not Applicable"; Separation Authority - "Paragraph 7-17b(9), AR 635-200"; Separation Code - "YDA"; Reentry Code - "RE-4"; and Narrative Reason for Separation - "Fraudulent Entry". That DD Form 214 also credited the applicant with 0 years, 0 months, and 0 days service.

 2. Legal/Regulatory Basis for Separation Action : Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 7, paragraph 7-17, of that regulation provides, in pertinent part, that 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, or a general discharge, or a discharge under other than honorable conditions. If in an entry-level status the characterization will be uncharacterized.

SECTION B-APPLICANT’S SUBMISSIONS


 1. Issue(s) of propriety and/or equity submitted by applicant or counsel.
As stated on applicant’s DD Form 293.
2. Exhibit(s) submitted:

         A-1: DD Form 293, dated 990412.
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE

PART IV - PREHEARING REVIEW (CONTINUED)



SECTION C - Medical and/or Legal Advisory Opinion


Referred to ( ) Medical Advisor ( ) Legal Advisor



 a. Medical prehearing comments (if applicable):

b. Legal prehearing comments (if applicable):
PART V - SUMMARY OF HEARING

SECTION A-Attendees and exhibits

1. Review/hearing information:

         a. Type requested:
         ( X ) Records review ( ) Hearing

         b. Type Held:
         ( X )Records review ( ) Hearing
         ( ) Tender Offer

         c. Review/hearing location and date: Washington, DC on 2 June 1999

         d. Appearance by:
         Applicant ( ) Yes ( X ) No
         Counsel ( ) Yes ( X ) No

          e. Applicant testified: ( ) Yes ( X ) No
        
         f. Counsel presentation: ( ) Yes ( X ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing:

PART VI - ISSUES AND FINDINGS

1. a. Applicant's issue(s) of propriety and/or equity:

          ( X )   Same as those listed on DD Form 293 and Part IV, Section A of this case report and directive.
         ( )     Revised issue(s) furnished in writing by applicant as follows:
         ( X )   Additional issue(s) identified during review/hearing as follows:

Board Issue: (3) The characterization of service is improper.
         b. Request: ( X ) Recharacterization ( ) Change of Reason
2. Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on issues of propriety and/or equity:

          a. Propriety:    The parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above:

(3) The issue is accepted. The Board noted that the applicant was
discharged under the provisions of Chapter 7, Paragraph 7-17b(9), AR 635-200,
by reason of fraudulent entry with no characterization of service after
serving 2 years, 2 months, and 23 days of active military service. The Board
determined that the applicant was no longer in an entry level status and that
a discharge under the provisions of Chapter 7, AR 635-200, for fraudulent
entry, required that the applicant's service be characterized. However, in
consideration of the serious misconduct which formed the basis for the
applicant's fraudulent entry, the Board determined that his actions clearly
diminished the quality of the applicant's service below that meriting a fully
honorable discharge. Accordingly, the Board voted to grant partial relief in
the form of a characterization of service of general, under honorable
conditions. The Board determined that the reason for discharge was both
proper and equitable and voted not to change it.

          b. Equity:       The parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above:

 (1) The issue is rejected. The Board carefully examined the applicant's record of service during the period of enlistment under review and the circumstances surrounding his discharge. The evidence of record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant that he signed paperwork indicating he would receive an honorable discharge. The evidence of record indicates the unit commander advised the applicant that he was recommending his term of service be void. His recommendation was based on the applicant’s failure to disclose on his enlistment contract (DD Form 19666) that he had been involved in a major international drug organization conspiring to import, distribute, and possess cocaine with the intent to distribute in the Los Angeles area. Therefore, the applicant was discharged under the provisions of chapter 7, AR 635-200, for fraudulent entry. See response to issue (3) above.


(2) The issue is rejected. The creation of discharge certificates is not within the purview of the Army Discharge Review Board. A copy of the appropriate discharge certificate may be acquired by submission of a Standard Form 180 (obtained from a local military installation) to the applicable address: Former active duty Army and Reserve Personnel: National Personnel Records Center (Military Personnel Records), 9700 Page Boulevard, St Louis, MO 63132. The National Personnel Records Center will not recreate a lost, stolen, or misplaced certificate of discharge. The Center will only create an initial certificate for personnel who have not previously received a certificate of discharge.
3. Response(s) to item(s) not addressed as decisional issue(s): NONE
PART VII - BOARD ACTION
SECTION A - Conclusions/Decisions/Vote

1.       Board conclusion(s):

         The discharge was:

          ( )      Proper.
         ( X )    Improper as to characterization. Change characterization to General, Under Honorable Conditions .
         ( )      Improper as to reason. Change reason to                         under                       .

         ( X )    Equitable.
         ( )      Inequitable as to characterization. Change characterization to                                .
         ( )      Inequitable as to reason. Change reason to                       
                  under                                  .
         ( )      Both proper and equitable, but characterization/reason for separation cited was an administrative/clerical error and should be changed to                      under                          .
2. Voting record: Change No Change
         Reason 0 5
Characterization 5 0

         The names and votes of the members of the Board are recorded in Part IX of this document and can be obtained by writing to the address below. The request must contain the CASE NO. located in the upper right corner of this document.

Department of the Army Review Boards Agency
ATTN: Promulgation Team
1941 Jefferson Davis Highway, 2nd Floor
Arlington, VA 22202-4508

3. Minority views: NONE

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       

                                 
MRS. WADE
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

 TO: ARBA Support Division-St Louis Date: 4 June 1999

The Army Discharge Review Board, established under the provisions of Section 30, Public Law 346, 78th Congress, 22 June 1944 and codified as Title 10, United States Code, Section 1553, in the case of the applicant named in Part I directs that the ARBA Support Division-St Louis issue a new DD Form 2l4 to the applicant which reflects the following directed change(s):
( X )   Change characterization of discharge to General, Under Honorable Conditions.
( X )   Other (see remarks below).
Remarks: The aforementioned action also requires that block # 23 (Type of Separation) be changed to "Discharge" and block # 12c (Net Active Service This Period) be changed to "2 years, 2 months, and 23 days."
SECTION B - CERTIFICATION

Approval Authority:


THOMAS J. ALLEN
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




SUZANNE WALKER
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge          C - Other
B - Material submitted by applicant

INDEX RECORD:

 AR Number: 1999025592 INDEX NUMBERS: A0112
Date of Review: 990602 A0100
Character of Service: NA A6201
Date of Discharge: 920710 A9445
Authority: AR 635-200 C7 A9217
Reason: A6200
Results of Board Action/
Vote/Affirmation: GD 5-0 A



PART IX - VOTING RECORD



 Name  Reason Characterization
 CHANGE NC HON UHC NC UNCHAR

1.      Mbr      X      X       

2.      Mbr      X      X       

3.      Mbr      X      X       

4.      Mbr      X      X       

5.      PO      X      X       





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