IN THE CASE OF:  	Mr. 
      
      BOARD DATE:  	28 February 2014

      CASE NUMBER:  	AR20130011103
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.



      
      
      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 his discharge from uncharacterized to honorable.

2.  The applicant states, in effect, that he was discharged as a result of being sick while in training.  He contends he was forced to go home and was never given all of the pay that he was due at the time of discharge.  The applicant also contends a Captain came to his house and took his discharge packet which was later lost by that individual.  He was told that if he needed his packet he needs to get a lawyer.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		17 June 2013
b. Discharge Received:		Uncharacterized
c. Date of Discharge:			23 June 2005
d. Reason/Authority/SPD/RE:		Fraudulent Entry, AR 635-200, Chapter 7, Sec V,						paragraph 7-17, JDA, RE-3
e. Unit of assignment:			B Co, 120th AG Bn, Fort Jackson, SC
f. Current Enlistment Date/Term:	17 May 2005, 3 years
g. Current Enlistment Service:	1 month, 7 days
h. Total Service:			1 month, 7 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	None
m. GT Score:				119
n. Education:				14 Yrs
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		None
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 17 May 2005, for a period of 3 years.  He was 22 years old at the time of entry with 14 years of education.  He was on active duty at Fort Jackson, SC when his separation was initiated.  His record documents no acts of valor or significant achievements.  


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 8 June 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 7, paragraph 7-17, AR 635-200, by reason of fraudulent enlistment, specifically for willfully and intentionally failing to disclose that he had received mental health counseling and was prescribed Xanax; making him ineligible for a waiver IAW AR 601-210.

2.  Based on the fraudulent enlistment, the unit commander recommended an entry level separation with service uncharacterized and advised the applicant of his rights.

3.  The applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action and indicated his intentions to submit a statement on his behalf which was not found in the record.  The unit commander subsequently recommended separation from the Army.  The intermediate commander reviewed the proposed action and recommended approval of the separation with an uncharacterized discharge.  

4.  On 11 June 2005, the separation authority approved the separation and directed the applicant’s discharge with a characterization of service of uncharacterized.

5.  The applicant was discharged from the Army on 23 June 2005, with a characterization of service of uncharacterized under the provisions of Chapter 7, paragraph 7-17, Section V, AR 635-200, for fraudulent entry, with a Separation Program Designator code (SPD) of JDA and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A USAREC Form 315 (Report of Alleged or Suspected Recruiting Impropriety), dated 26 May 2005, which indicates the applicant was taking Xanax (Aprazolan) prior to being shipped to Fort Jackson.  Also that he was being discharged for fraudulent enlistment IAW Chapter 7-17, AR 635-200.

2.  Sworn Statement from the applicant dated 24 May 2005, attesting to the fact that he told the recruiter that he was taking Xanax.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a Department of Veterans Affairs statement in support of his claim, and disabled American veterans contact brief.




POST-SERVICE ACTIVITY: 

None were 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.

DISCUSSION AND RECOMMENDATION:

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

2.  The evidence in the record shows the applicant willfully and intentionally failed to disclose that he had received mental health counseling and was prescribed Xanax prior to his entry on active duty and was discharged under the provisions of Chapter 7, paragraph 7-17, AR 635-200 by reason of fraudulent enlistment.

3.  The applicant’s service was uncharacterized because he was in entry-level status.  A Soldier is in entry-level status (ELS) for the first 180 days of continuous active duty.  The purpose of the entry-level status is to provide the Soldier a probationary period.  Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when his separation is initiated while the Soldier is in entry level status.  

4.  A general, under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  The record confirms that no such unusual circumstances were present in the applicant’s record and his service did not warrant an honorable discharge.

5.  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.  

6.  Additionally, the applicant contends his discharge packet was lost after he gave it to a Captain.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that someone came to his house and too his discharge packet.  The applicant’s statement alone does not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided by the applicant.   

7.  The record does not contain any evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

8.  The applicant contends he was never given all of the pay that he was due at the time of discharge.  However, this issue does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization.

9.  In view of the foregoing, 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:  28 February 2014     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	2	No Change:  3
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					NA




















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)		AR20130011103



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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