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Decision Text

ARMY | BCMR | CY1997 | 9709892
Original file (9709892.rtf) Auto-classification: Denied
APPLICANT REQUESTS: Correction of his military records to show appropriate service time on his DD 214, item 22. He states that the total active service is not annotated on his DD Form 214 to reflect his enlistment period. He has provided his DD Form 214, VA Claim Number C24249298, and VA Patient Data Card in support of his request.
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:

He was enlisted in the Regular Army on 23 June 1967 for 3 years. He illegally concealed his dependency status for this enlistment.

During his brief service he received nonjudicial punishment under Article 15, UCMJ, for two incidents of misconduct.

On 7 December 1967 he was honorably discharged from the Regular Army for fraudulent entry under the provisions of
AR 635-206, Section V. The fraudulent service was not creditable for basic pay purposes on his DD Form 214.

Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), in effect at the time, specified that “Time spent in an enlistment which is determined to be fraudulent and is specifically terminated by reason of fraud” is not creditable for basic pay.

Army Regulation 635-206, Section V, paragraph 5 states. “Concealment of other disqualifications. “Upon discovery that an individual has procured his entry into the Army by assuming the identity of another individual through the use of a discharge certificate or other military documents belonging to the true individual or by concealment of any fact, circumstances, or condition that existed prior to entry which would have made the individual ineligible for acceptance, other than concealment of minority or true name, he will be considered for discharge under the provisions of this regulation. However, if the individual’s general qualifications are such that he is an asset to the service, the commander exercising general court-martial jurisdiction may, upon request of the individual’s unit commander, direct retention (retention constitutes waiver of 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
7 December 1967, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 7 December 1970.

The application is dated 21 February 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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