APPLICANT REQUESTS: That the reason for discharge on his DD Form 214(report of separation from active duty) be changed from Chapter 14, 635-200 to Chapter 11, 635-200. In effect, he says the recruiter erased his prior Navy service on his Army enlistment application.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
On 1 November 1974 he joined the Navy a few days after he turned 17 years old. He was released 20 days later for unsuitability with an honorable discharge and a re-entry (RE) code of 4. He then enlisted in the Army on 18 May 1976 and a few months later he was under investigation for fraudulent enlistment because he concealed his Navy service on his Army enlistment application. He was discharged for fraudulent enlistment on 14 October 1976 with 5 months 3 days active duty service.
There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
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.
Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 14 October 1976, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 14 October 1979.
The application is dated 24 September 1996 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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