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ABCMR Memorandum of                                                                   AC97-11529
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:                              
	DOCKET NUMBER:   AC97-11529

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:

| Mr. | | | Chairperson
| Mr. | | | Member
| Mr. | | | Member

	Also present, without vote, were:

| Mr. | Loren G. Harrell | | Director
| Mr. | Joseph A. Adriance | | Analyst

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                 advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that the reason for his discharge be changed from fraudulent entry to discharged under chapter 7 and that he be given a reserve obligation with an expiration date.

APPLICANT STATES:  In effect, that fraudulent entry is not applicable; that he disclosed his financial obligations to the best of his knowledge to include that he had filed bankruptcy; that he was told at the time of discharge that it was waiverable by the local recruiter; and that he is now told by his local recruiter that it is not possible.

EVIDENCE OF RECORD:  The applicant's military records show:

On 12 September 1996 the applicant entered the Regular Army for 4 years.  At the time of enlistment the applicant was 31 years of age and a college graduate. He successfully completed basic training and advanced individual training (AIT), at Fort Jackson, South Carolina, at which time he was awarded military occupational specialty (MOS) 75H (Personnel Specialist) and was assigned to remain at Fort Jackson for his first permanent duty station.

The applicant’s record documents no acts of valor, achievement, or service warranting special recognition and no incidents of disciplinary infractions prior to the action for which he was ultimately discharged.

On 27 May 1997 the chief of student processing services forwarded a completed report of investigation, on the applicant, which contained certain information requiring a waiver for entry into the Regular Army and may have resulted in rejection; the applicant had failed to reveal the information while undergoing  enlistment processing.  On 29 May 1997 the applicant was counseled, by his immediate supervisor, on the information contained in the report of investigation and advised that separation action was a possibility.  The applicant responded to the counseling with a statement indicating he now wished to leave the Army because his wife now had a full time position as an eliminatory school teacher which would provide them the resources to relieve their outstanding debts.

On 29 May 1997 the applicant’s unit commander notified the applicant of his intent to initiate separation action on him, under the provisions of chapter 7, AR 635-200, for fraudulent enlistment.  The commander cited as his reasons for the action the applicant’s failure to disclose all the information regarding his financial records during enlistment into the military; in addition, he stated that had such information been known and considered by the Army at the time of enlistment it may have resulted in rejection.  

The applicant elected to waive his right to consult counsel and completed his election of rights by submitting a statement in his own behalf.  On 30 May 1997 the separation packet was reviewed by chief of the criminal law division who determined that the proposed action was legally sufficient.

On 30 May 1997 the intermediate level commander recommended approval of the separation action and recommended that the applicant not be transferred to the Individual Ready Reserve (IRR) since he clearly has no potential for useful service under the condition of full mobilization.  The appropriate authority approved the separation action and directed the applicant be issued an honorable discharge and not be transferred to the IRR.  Accordingly, on 6 June 1997 the applicant was discharged after completing 8 months and 25 days of active military service.

There is no evidence the applicant has ever applied to the Army Discharge Review Board requesting a change in the reason and authority for discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 7, Section V, paragraph 7-17 establishes policy and prescribes procedures for separating members for fraudulent entry.  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.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The evidence of record and the independent evidence submitted by the applicant does not support his contention that he disclosed his debts to the best of his knowledge.  The Board was satisfied that the separation process was legally sufficient as evidenced by the legal determination by the chief of criminal law; in addition, the Board concluded that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 

2.  The Board noted the applicant’s contention that his local recruiter advised him that they did not do waivers and that there is no waiver allowed for debts.  However, this is not an issue that raises a matter of fact, law, procedure, or discretion relating to the discharge process nor is it associated with the discharge at the time of issuance.
3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director