APPLICANT REQUESTS:  In effect, the applicant requests that his discharge for fraudulent entry be upgraded to honorable in order that he receive VA benefits (This information was gained on 25 June 1997 from an aide to a member of congress (MC), in whom the applicant had requested assistance).  

APPLICANT STATES:  In effect, the applicant states that one copy of his DD Form 214 (Report of Separation from Active Duty) shows that he was released from active duty on 
4 April 1977, but the authority and reason for his release (item 9c), and the remarks section (item 27) are blank, whereas another copy indicates the authority for his release as “para 14-4A or 14-4D, AR 635-200  SPD: YKG  (See Item 27)”, and the remarks section indicates “Misconduct-Fraudulent Entry.  Time served during period of voided service is not creditable for promotion or longevity.  EM did not complete BCT (basic training)”.  

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

A 31 March 1976 probation form indicates that the applicant was arraigned upon an indictment returned by the Grand Jury of Newton County in Mississippi for burglary, pled guilty, and sentenced to two years in the state penitentiary.  He was ordered to serve ninety days in the county jail, payment of $100.00 and court costs, with the balance of his sentence suspended, and placed on probation for five years.

The applicant enlisted in the Army Reserve (Delayed Entry Program) for six years on 15 July 1976.  On 14 July 1976 the applicant certified on his enlistment contract that he had never been involved with police or judicial authorities.  He specifically answered no to questions as to whether he had ever been arrested, charged, cited, or held by Federal, State, or other law enforcement or juvenile authorities; as a result of being arrested, charged, cited, or held by law enforcement or juvenile authorities, had he ever been convicted; had he ever been detained, held in, or served time in any jail or prison; or had he ever been or was he then under suspended sentence, parole, or probation.  The applicant stated that he understood that if he concealed any previous records of arrest or convictions, he would be subject to disciplinary action and/or discharge from the military service with other than an honorable discharge.

The applicant was discharged from the Army Reserve and enlisted in the Army for three years on 24 August 1976, and on 30 August was assigned to Fort Gordon, Georgia for training.

A 12 February 1977 report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the medical standards for retention in the Army.

A 17 February 1977 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  In the report of medical history the applicant furnished for the examination, he stated that his health was “Good”.

On 16 February 1977 the applicant made a sworn statement to the effect that he told his Army Recruiter that he wanted to join the Army, but that he was on probation.  He stated that the recruiter told him not to worry or mention it, but to have his probation officer concur in his enlistment.  He stated that he told the recruiter about his problems with drugs and his rehabilitation, and that his probation was in Newton County.  The recruiter told him to have his records card signed in Scott County.

On 17 February 1977 the applicant’s commanding officer notified the applicant that he was recommending that the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 14 because of recruiter connivance.  

On 25 February 1977 the applicant’s commanding officer recommended that the applicant’s enlistment be voided.

On 30 March 1977 the separation authority approved the recommendation and directed that the applicant’s enlistment be voided, and that orders be published releasing the applicant from Army control because of fraudulent entry.

The applicant was released from military service on 
4 April 1977 for misconduct-fraudulent entry and his period of service voided.  His DD Form 214 reflects no active or inactive service time because of his voided service.  

A 22 April 1997 letter from a physician to a MC indicates that the applicant had stated that the MC might be able to help the applicant get reinstated with medical care from the VA.  The doctor stated the applicant had many different problems, many related to autoimmune problems.  The applicant has idiopathic thrombocytopenic purpura, chronic hepatitis C, chronic pain from arthralgias through his body, bleeding gums, chronic infections exhibited mainly as chronic sinusitis, and was disabled.

Information received from a MC on 25 June 1997 is that the applicant is seriously ill with AIDS. 

Army Regulation 635-200 sets for the basic authority for the separation of enlisted personnel on active duty.  Chapter 14, in effect at the time, contained the policy and outlined the procedures used in separating individuals for fraudulent entry.  It provided, in pertinent part, that fraudulent entry was the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection.  Any incident which met the foregoing may be cause for discharge for fraudulent entry.  Paragraph 14-3 states, in part, that commanders exercising general court-martial jurisdiction are authorized to void a fraudulent entry by issuing special orders releasing the individual from Army control by reason of fraudulent entry when such individual is AWOL or in desertion.

The office of the Judge Advocate General has opined in previous cases of this nature that because an applicant’s enlistment was void ab initio for fraud, the applicant never acquired military status, and therefore, his DD Form 214 correctly reflected no active service.  The applicant was properly separated for fraudulent enlistment under regulations in effect at the time and the separation was not contrary to existing law.  Since the Army chose not to waive the defect in an applicant’s enlistment, the enlistment was void.  The applicant was, therefore, not entitled as a matter of law to the relief requested.

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

1.  The applicant was properly released from the Army and his service voided, because of fraudulent entry.

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request. 

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



						Karl F. Schneider
						Acting Director