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Decision Text

ARMY | BCMR | CY1980-1989 | 8404174
Original file (8404174.rtf) Auto-classification: Approved
2. The applicant requests that his discharge be upgraded to honorable. He states, in effect, that while assigned to Kilmer, New Jersey he received orders for assignment to Germany. Shortly after his arrival in Germany, he was notified that his father was sick. He applied for a hardship discharge due to his father’s illness and because he did not list his father as a dependent he was discharged for fraudulent enlistment and issued an undesirable discharge certificate.
3. The applicant’s military records were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from reconstructed records.

4. Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board’s original consideration of his case on 26 June 1985 based solely for the purpose of reviewing the propriety of the Army Discharge Review Board (ADRB) action, otherwise that Board would have declined to consider the case because of the lack of records (COPY ATTACHED).

5. Counsel for the applicant contends that a fraudulent enlistment under the provisions (UP) of AR 615-366 in 1949 was recommended by commanders for any of seven disqualifying reasons, none of which pertain to the applicant. Both the applicant and his counsel concede they cannot prove the Army did not have reason to discharge him for having dependents.

6. Because his records were apparently lost or destroyed in the 1973 fire, there is no evidence of a request for a hardship discharge, no record of disciplinary action, and no record of the discharge proceedings for fraudulent enlistment under the provisions of AR 615-366.

7. The Department of Defense Directive 1332.28 (Discharge Review) states that a discharge should be considered proper unless there is an error or change in policy that significantly enhanced the individuals processing rights. Under current practices in AR 635-200 a commander will determine if concealed information is in fact disqualifying using the criteria for enlistment or reenlistment in AR 601-280 or AR 601-210. If fraudulent entry is verified, action will be taken to suspend the soldier’s pay and allowances per DODPM, part one, chapter 4 and then take one of the following actions:

a. Direct discharge and issuance of an honorable or general discharge certificate.

b. Direct discharge and issuance of a discharge certificate under other than honorable conditions provided the soldier has waived his or her rights to present the case before a board of officers

c. If discharge under other than honorable conditions appears warranted, direct that a board be convened to determine whether the soldier should be discharged.

8. A check with the FBI reveals the applicant has no criminal record.

CONCLUSIONS :

1. The applicant and his counsel both state he concealed dependents upon enlistment.

2. There is no available evidence to show that his discharge was based on any other factors.

3. Given all the circumstances of the case the undesirable discharge is now too harsh and should be changed to honorable.

4. In view of the foregoing findings and conclusions, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION :

That all of the Department of the Army records related to this case be corrected by voiding the 10 September 1949 undesirable discharge, by providing the individual concerned with a new DD Form 214 showing separation with an honorable discharge on 10 September 1949 and by furnishing the individual concerned with an Honorable Discharge Certificate.


BOARD VOTE :

________ ________ ________ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON

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