IN THE CASE OF:  	

      BOARD DATE:  	6 November 2013

      CASE NUMBER:  	AR20130008277
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board determined the discharge is now inequitable.  The Board found the quality of the applicant's service and the circumstances surrounding her discharge mitigated the discrediting entry in her service record.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority.  This action entails a change to the reentry eligibility (RE) code to 1.



      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests an upgrade of her discharge from general, under honorable conditions to honorable and a change to the narrative reason for discharge.

2.  The applicant states, in effect, that she was single when she enlisted and married at the time separation action was initiated against her.  She contends there are no regulations covering what happens when you go from being single to married.  She thought she would need a family care plan, but was told by her commander at the time of discharge, she could not have one as a result of being single when she enlisted.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		29 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			24 October 2012
d. Reason/Authority/SPD/RE:		Fraudulent Entry, AR 635-200, Chapter 7, Sec IV 						YDA, RE-3
e. Unit of assignment:			G Co, 299th CS, Fort Riley, KS
f. Current Enlistment Date/Term:	4 August 2010, 2 years and 25 weeks
g. Current Enlistment Service:	2 years, 2 month, 21 days
h. Total Service:			2 years, 2 month, 21 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92F10, Petroleum Supply Specialist
m. GT Score:				100
n. Education:				HS Graduate
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, KDSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 4 August 2010, for a period of 2 years and       25 weeks.  She was 23 years old at the time of entry and a high school graduate.  She was serving at Fort Riley, KS when her discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 20 September 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 7, Section IV, paragraph 7-17, AR 635-200, by reason of fraudulent enlistment, specifically for willfully breeching her enlistment contract by conspiring to take custody of her daughter upon graduation of advanced individual training (AIT), which plan was placed on hold due to her tour in Korea and then taking legal custody of her daughter upon her return from Korea; and while serving her tour in Korea, she enrolled her daughter in DEERS and subsequently received family separation pay.

2.  Based on the fraudulent enlistment, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of her rights.

3.  On 2 October 2012, the applicant waived her right to consult with legal counsel, was advised of the impact of the discharge action and submitted a statement on her behalf.  The unit commander subsequently recommended separation from the Army.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  

4.  On 18 October 2012, the separation authority approved the separation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 24 October 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 7, section IV, paragraph 7-17, AR 635-200, fraudulent entry, with a Separation Program Designator code (SPD) of YDA and an RE code of 3. 

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Memorandum from the applicant, dated 2 October 2012, setting forth the circumstances of her enlistment and subsequent service.

2.  A copy of the Application for Identification Card/Deers Enrollment submitted by the applicant.

3.  A copy of the Temporary Letters of Guardianship of Minor Letter, dated 1 December 2009.

4.  Counseling statement dated 20 July 2012, for defective enlistment.

5.  Memorandum from CPT S, dated 1 October 2012, setting forth the applicant's service in Korea.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, self-authored memorandum, dated 2 October 2012, marriage certificate, extract from AR 635-200, Chapter 7-17(8), copy of DD Form 1966/1/2/3 & 4, copy of statement of enlistment, letter and enrollment from DEERS, permanent change of station (PCS) orders to Fort Riley, KS, waiver documents for child custody, supporting notarized documents, dated 28 September 2012, supporting document/legal packet, ERB, dated 18 November 2010 and 8 August 2012, and a copy of her DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None provided with the application.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 7, paragraph 7-17 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.  

2.  Soldiers separated under Chapter 7 may be awarded an honorable discharge, general, under honorable conditions discharge, or a discharge under other than honorable conditions.  If in an entry level status, the discharge will be uncharacterized.  

3.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

4.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

5.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "YDA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 7, paragraph 7-17, fraudulent entry.

6.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "YDA" will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge was carefully considered.  However, after examining the applicant’s record of service, her military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  Army Regulation 635-200, Chapter 7, Section IV, paragraph 7-17b(8) "Misrepresentation of intent with regard to legal custody of children" states "A Soldier who is an applicant without a spouse at the time of enlistment and who executed the certificate required by AR 601-201 will be processed for separation for fraudulent entry if custody of a child is regained by court decree, as provided by State law, or as a result of a child resuming residency with the Soldier instead of the legal custodian."  The evidence of record shows the applicant certified at enlistment that the custody arrangement was intended to remain in full force and effect during the term of enlistment, the burden is on the Soldier to demonstrate that regaining custody is not contrary to statements made at the time of enlistment.

3.  The record confirms the applicant’s discharge was appropriate because the quality of her service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By willfully breeching her enlistment contract by conspiring to take custody of her daughter upon graduation of AIT, enrolling her in DEERS and subsequently received family separation pay.  The applicant diminished the quality of her service below that meriting a fully honorable discharge.  

4.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

5.  The applicant also requested that her narrative reason for discharge be changed.  However, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "YDA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 7, Section IV, paragraph 7-17, for fraudulent entry.  The regulation further stipulates that no deviation is authorized.  

6.  Furthermore, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

7.  The records show the proper discharge and separation authority procedures were followed in this case.  

8.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	  Date:  6 November 2013     Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	3	No Change:  2
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			Yes
Change Characterization to:		Honorable
Change Reason to:				Secretarial Authority
Change Authority for Separation:		AR 635-200, paragraph 5-3
Change RE Code to:			RE Code 1
Grade Restoration to:			NA
Other:						Change SPD Code to JFF
















Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130008277



Page 2 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1