AR20160016421

1. Applicants Name:

a. Application Date: 22 September 2016

b. Date Received: 17 October 2016

c. Counsel: None

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of her general (under honorable conditions) discharge to honorable and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, she would like an upgrade for the purpose of improving her opportunities for employment and to further her education. The applicant contends her discharge was unfair due to her lack of knowledge. The applicant states that her recruiter at the time knew she had custody of her daughter. He told her that if she gave temporary custody to the childs father or grandmother, she would be able to receive custody of her child once she got to her unit. The applicant trusted her recruiter, so she complied with his suggestion of signing temporary custody over to her childs father. The applicant informed her recruiter of what she had done and proceeded with processing at the MEPS, with belief that she could make a better life and career for both her and her child. The applicant contends that the action that was taken against her at the time of discharge was no fault of hers. She contends she had no knowledge that she could not have her daughter on her first term contract. While at her at first duty station, her mom became ill and her childs father could not care for her daughter. The applicant informed her Sergeant what had occurred at the time and he told her he would help as much as possible to make a way to get her daughter. The commander was briefed on the applicants situation and agreed to help her. A couple of months later, the applicants mom brought her daughter to her duty station. In the midst of all of the events that occurred, the commander retired and a new commander wanted to know how the applicant was able to have her daughter at her first duty assignment. The commander began researching and as a result, the applicant was discharged for having a dependent.

In a personal appearance hearing conducted at Warner Robins, GA on 17 November 2016, and by a 5-0 vote, the Board determined the discharge is now inequitable. The Board found the overall quality of the applicant’s service, the circumstances surrounding her discharge (i.e. defense counsels opine and recruiter impropriety), and personal testimony mitigated the discrediting entry in her service record. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable, the separation authority changed to AR 635-200, Chapter 5-8, the narrative reason for separation changed to Parenthood and the separation code to JDG. No change to RE-Code.

(Board member names available upon request)

3. DISCHARGE DETAILS:

a. Reason / Authority / Codes / Characterization: Fraudulent Entry / AR 635-200, Chapter 7, SEC V / JDA / RE-3 / General (Under Honorable Conditions)

b. Date of Discharge: 15 May 2004

c. Separation Facts:

(1) Date of Notification of Intent to Separate: 16 March 2004

(2) Basis for Separation: The applicant enlisted into the Army under fraudulent means by having a minor dependent, which she had custody of pursuant to a court order. She arranged for temporary care of the child prior to enlistment and later willfully regained custody at her duty station and consequently, she did not have a family care plan.

(3) Recommended Characterization: Honorable

(4) Legal Consultation Date: 5 April 2004

(5) Administrative Separation Board: NA

(6) Separation Decision Date / Characterization: 26 April 2004 / General (Under Honorable Conditions)

4. SERVICE DETAILS:

a. Date / Period of Enlistment: 30 October 2002 / 4 years

b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 101

c. Highest Grade Achieved / MOS / Total Service: E-3 / 42L10, Administrative Specialist / 1 year, 6 months, 16 days

d. Prior Service / Characterizations: None

e. Overseas Service / Combat Service: None

f. Awards and Decorations: NDSM, GWOTSM, ASR

g. Performance Ratings: None

h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for failure to maintain a family care plan and failure to obey a lawful order.

i. Lost Time / Mode of Return: None

j. Diagnosed PTSD / TBI / Behavioral Health: NIF

5. APPLICANT-PROVIDED EVIDENCE: Online application; personal statement; partial documents from the Cuyahoga County Court of Common Pleas Juvenile Division and senior defense counsel.

6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application.

7. REGULATORY CITATION(S): Army Regulation (AR) 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.

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.

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 “JDA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 7, and Fraudulent Entry.

The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “JDA” will be assigned an RE Code of 3.

8. DISCUSSION OF FACT(S): The applicant requests an upgrade of her general (under honorable conditions) discharge to honorable and a change to the narrative reason for separation. The applicants record of service, the issues and documents submitted with her application were carefully reviewed.

The record confirms the applicants 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 the procurement of her enlistment through deliberate material misrepresentation, the applicant diminished the quality of her service below that meriting a fully honorable discharge.

The appropriate SPD code and narrative reason to assign enlisted Soldiers who are discharged for fraudulent entry is JDA and the RE code is 3. The regulation further stipulates no deviation is authorized.

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

The applicant contends that she was unfairly discharged due to her lack of knowledge and what she was told by her recruiter. The applicants contentions were noted; 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 she was unfairly discharged or that she received incorrect information from her recruiter. The applicants statements alone do not overcome the governments presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.

Evidence in the record, DD Form 1966/2 (Record of Military Processing Armed Forces of the United States), reflects the applicant initialed under the NO column in items 23a and 23b. Item 23a specifically states, Is anyone dependent upon you for support, While item 23b states, Is there any court order or judgment in effect that directs you to provide alimony or support for children, The applicants signature and date in blocks 29c and 29d authenticated block 29a, which states, I certify that the information given by me in this document is true, complete, and correct to the best of my knowledge and belief. I understand that I am being accepted for enlistment based on the information provided by me in this document; that if any of the information is knowingly false or incorrect, I could be tried in a civilian or military court and could receive a less than honorable discharge which could affect my future employment opportunities.

Further evidence indicates that on 20 September 2002, the applicant appeared before the Cuyahoga County Court, Juvenile Division, to determine custody and visitation of her minor child. At that time, the applicant entered into a Shared Parenting Agreement with the applicants mother and the childs biological father. According to the Mediation Agreement, Case Number CU 02108374, under custody, it specifically states due to mothers participation in the military the father, N.B. will be the Legal Custodian of his daughter A.B., effective October 28, 2002 until March 24, 2003 at which point Mother will become the Custodial parent effective March 25, 2003.

It appears the applicant failed to notify military authority she had a dependent child. Had the applicant notified military authority she had a dependent child she would have been required to fill out DA Form 3286-69 (Statement of Understanding for Persons Having Dependents in the Custody of Another). The applicant would have certified the custody agreement was intended to remain in full force and effect during the term for which she was enlisting. In addition, she would have been made aware that if she regained custody of the child, either by court decree, or in accordance with applicable state law, or if the child was residing with her in lieu of the legal custodian, she would be processed for involuntary separation for fraudulent entry unless she can show that the regaining custody was not contrary to the above stated intent; (e.g. death or incapacity of other parent or custodian).

The applicant expressed her desire for an upgrade for the purpose of improving her opportunities for employment and to further her education. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, eligibility for veteran’s benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

The record does not contain any indication or 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. The character of the applicants discharge is commensurate with his overall service record.

The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process.

9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

a. The applicant submitted no additional documents or contentions.

b. Witness: Yes esriend)

10. BOARD DETERMINATION: In a personal appearance hearing conducted at Warner Robins, GA on 17 November 2016, and by a 5-0 vote, the Board determined the discharge is now inequitable. The Board found the overall quality of the applicant’s service, the circumstances surrounding her discharge (i.e. defense counsels opine and recruiter impropriety), and personal testimony mitigated the discrediting entry in her service record. Accordingly, the Board voted to grant full relief in the form of an upgrade to the characterization of service to honorable, the separation authority changed to AR 635-200, Chapter 5-8, and the narrative reason for separation changed to Parenthood and the separation code to JDG. No change to RE-Code.

11. BOARD ACTION DIRECTED:

a. Issue a New DD-214: Yes

b. Change Characterization to: Honorable

c. Change Reason to: Parenthood

d. Change SPD / RE Code to: JDG, AR 635-200, chapter 5-8
No change to RE-Code

e. Restore (Restoration of) Grade to: NA

AUTHENTICATING OFFICIAL:

COL, US ARMY
Presiding Officer
Army Discharge Review Board

Legend:
AWOL – Absent Without Leave GD – General Discharge NCO Noncommissioned Officer SCM – Summary Court Martial
BCD – Bad Conduct Discharge HS – High School NIF – Not in File SPCM – Special Court Martial
BH Behavioral Health HD – Honorable Discharge NOS Not Otherwise Specified SPD – Separation Program Designator
CG – Company Grade Article 15 IADT – Initial Active Duty Training OAD – Ordered to Active Duty TBI Traumatic Brain Injury
CID – Criminal Investigation Division MP Military Police OMPF – Official Military Personnel File UNC – Uncharacterized Discharge
ELS Entry Level Status MST Military Sexual Trauma PTSD Post-Traumatic Stress Disorder UOTHC – Under Other Than Honorable ConditionsFG – Field Grade Article 15 NA – Not applicable RE – Reentry VA Veterans Affairs
VA Veterans Affairs
ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE
AR20160016421

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