APPLICANT REQUESTS: That his discharge be upgraded.
APPLICANT STATES: In effect, he enlisted in the Regular Army in 1976; that because of his maturity and misconduct, he was discharged under other than honorable conditions (UOTHC). In 1979, he fraudulently reenlisted in the Regular Army.
EVIDENCE OF RECORD: The applicant's military records show:
He was born on 14 September 1958. He completed 10 years of formal education. On 19 January 1976, the applicant enlisted in the Regular Army for 3 years. His Armed Forces Qualification Test score was 75 (Category II). He completed the required training and was awarded military occupational specialty 94B10 (Food Service Specialist). The highest grade he achieved was pay grade E-2.
On 29 May 1976, the applicant was reported for being absent without leave (AWOL). He was apprehended by military authorities on 10 August 1976.
On 20 August 1976, court-martial charges were preferred against the applicant for being AWOL from 29 May to 9 August 1976.
On 23 August 1976, a mental and a physical evaluation found the applicant fit for retention.
On 24 August 1976, after consulting with legal counsel the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.
The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He was afforded the opportunity to submit statements in his behalf, but declined to do so.
On 10 September 1976, the appropriate authority approved his request, reduced the applicant to the lowest enlisted grade and directed the issuance of a discharge UOTHC.
On 20 September 1976, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a discharge UOTHC. He had completed 5 months and 21 days of creditable active service and had 73 days of lost time. The applicant was assigned a reentry code of RE-4, which was later changed to reentry code of RE-3.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge UOTHC is normally considered appropriate.
On 7 June 1979, the applicant fraudulently enlisted in the Regular Army for a period of 3 years. On his enlistment agreement contract, which he authenticated with his signature, it states that he had no prior military service
On 31 January 1980, the commander recommended that the applicant be eliminated from service under the provisions of Army Regulation 635-200, (fraudulent entry). The recommendation was based on the applicants concealment of his prior military service. The applicant was advised by legal counsel of the basis for the contemplated separation action and his rights available to him. The applicant waived personal appearance, consideration, and representation by counsel before a board of officers. The applicant also signed a statement stating that he did not wish to be retained in the military.
On 17 March 1980, a mental and a physical evaluation found the applicant fit for retention.
On 30 June 1980, the appropriate authority approved the recommendation. On 19 August 1980, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, (misconduct-fraudulent entry). He had completed 1 year, 2 months and 12 days of military service.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of that regulation deal with separation for various types of misconduct, which includes fraudulent entry into the service. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
There is no indication in the applicants Official Military Personnel File which indicates what cause the delay in the discharge process.
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. 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
2. The evidence of records shows that the applicant reenlisted into the Army without obtaining a waiver for his prior service with the Army for which he received a discharge UOTHC.
3. The discharge proceedings were conducted in accordance with law and regulation applicable at the time. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
4. In view of the foregoing, there is no basis for granting the applicants 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
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