MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 November 2001
         DOCKET NUMBER: AR2001061537

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Deborah S. Jacobs		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Donald P. Hupman, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his general discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he was discharged for fraudulent enlistment after serving two years and four months in the Army. He contends that he answered “yes” to the questions regarding arrests and convictions on his enlistment contract, that he informed his recruiter of the alleged larceny offense and that the charge had been dismissed. The recruiter placed him into the delayed entry program, conducted a records check and discovered only the speeding infraction. The recruiter advised the applicant that only the traffic violation should be shown on his application for enlistment. In support of his application, he submits a 68-page packet which consists of a letter of explanation, dated 5 March 2001; a letter, dated 11 July 2001, from a Member of Congress; a letter, dated 28 June 2001, from the Review Boards Agency; and numerous copies of his service personnel records.

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

While serving in the Army National Guard, the applicant was ordered to active duty on 10 July 1978 for training. He was released from active duty on
7 November 1978 and transferred to the Army National Guard.

On 14 July 1981, the applicant was indicted by a Grand Jury in the State of Mississippi, Circuit Court, First Judicial District of Hinds County, for committing Grand Larceny on 19 February 1981.

The applicant enlisted in the delayed entry program on 18 September 1981. Item 36 (Involvement with Police or Judicial Authorities) on the applicant’s DD Form 1966/5 (Application for Enlistment – Armed Forces of the United States) shows the applicant answered “Yes” to item 36a (Have you ever been arrested, charged, cited (including traffic violations) or held by any law-enforcement or juvenile authorities in the United States or in a foreign country regardless of whether the citation or charge was dropped or dismissed or you were found not guilty?) and item 36b (As a result of being arrested, charged, cited or held by law-enforcement or juvenile authorities, have you ever been convicted, fined, or forfeited bond, or adjudicated a youthful offender or juvenile delinquent (regardless of whether the record in your case has been “sealed”, expunged, or otherwise stricken from the court record)?). Item 36f (Explain below “yes” answers given in “a” through “d” above. (Include all incidents with law-enforcement authorities even if the citation or charge was dropped or dismissed or you were found not guilty or you have been told by recruiting personnel or anyone else that the incident was not important enough to list.) shows one offense, a traffic violation (speeding) on 21 June 1981.

The applicant entered active duty on 27 October 1981, completed training as a materiel storage and handling specialist and was assigned to Fort Hood, Texas.
On 16 January 1984, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation. His punishment consisted of extra duty and restriction.

On 17 February 1984, nonjudicial punishment was imposed against the applicant for disobeying two lawful orders from his superior noncommissioned officer. His punishment consisted of extra duty, restriction and a reduction to E-3 (suspended for 30 days).

On 22 February 1984, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 7, for fraudulent enlistment. The company commander based his recommendation for separation on the applicant’s Grand Jury indictment for Grand Larceny, dated 14 July 1981.

On 23 February 1984, after consulting with counsel, the applicant submitted a letter from his defense counsel on his behalf. In summary, the defense counsel contends that there was no concealment of information and that the applicant’s separation packet contains no evidence to indicate whether there was a conviction, dismissal, or whether an indictment is an automatic disqualifying factor.

The applicant’s company commander initiated a recommendation to separate him from the service under the provisions of Army Regulation 635-200, chapter 7, for fraudulent enlistment.

The intermediate commander concurred with the recommendation.

The applicant’s records contain a letter, dated 6 March 1984, from a Trial Counsel. This letter states: “Under normal circumstances, and assuming this soldier’s performance had been satisfactory, I would have intervened on his behalf to keep him on active duty. [The applicant] has received two Article 15s and is presently pending a third. Although counseled numerous times, he has not shown improvement. CPT. [last name omitted] states that the complaints of CPT [name of applicant’s defense counsel omitted], are without merit. For the good of the service I recommend we get [applicant] out of the Army immediately.”
On 8 March 1984, the separation authority approved the recommendation for separation and directed that he be furnished a general discharge.

The applicant was discharged on 14 March 1984 with a general discharge under the provisions of Army Regulation 635-200, chapter 7, for fraudulent enlistment. He had served 2 years, 8 months and 16 days of total active service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 7, paragraph 7-17, of that regulation provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. A soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention. Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions. If in an entry level status the characterization will be uncharacterized.

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

1. Evidence of record shows that the applicant was indicted by a Grand Jury on 14 July 1981 for Grand Larceny.

2. Evidence of record shows that the applicant did not list this larceny offense in item 36f on his application for enlistment.

3. The Board considered the applicant’s contention that he informed his recruiter of the alleged larceny offense and that the charge had been dismissed. The Board also considered the applicant’s contentions that the recruiter conducted a records check, that he only found a speeding violation on the applicant’s record and that he advised the applicant that only the speeding infraction should be listed in item 36f on his enlistment contract. However, item 36f states, “Include all incidents with law-enforcement authorities even if the citation or charge was dropped or dismissed or you were found not guilty or you have been told by recruiting personnel or anyone else that the incident was not important enough to list.” Therefore, the applicant’s larceny offense should have been entered in item 36f on his application for enlistment.

4. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6. 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 this requirement.

7. 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

DSJ_____ EJA____ DPH____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001061537
SUFFIX
RECON
DATE BOARDED	20011106
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19840314
DISCHARGE AUTHORITY	AR 635-200 Chapter 7
DISCHARGE REASON	Fraudulent Entry
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.