MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 June 2002
         DOCKET NUMBER: AR2001063562

         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
Mr. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Richard T. Dunbar		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 undesirable discharge be upgraded to general under honorable conditions.

APPLICANT STATES: In effect, that he was illegally enlisted in the Army at the age of 15. He states that because no one signed for him to enlist, as a minor, he should receive an upgrade of his discharge. He also states that his records and especially his DD Form 214 (Report of Transfer or Discharge) contain several errors, including his period of service, date of birth (DOB), and Social Security Number (SSN), and that a different name appears on many of his "papers".

The applicant submits a Michigan Department of Corrections Basic Information Report to support his contentions of errors in his records. This form lists his DOB as 5 June 1954, his SSN as 331-XX-XXXX, and his period of military service as 1969-1972.

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

The applicant entered active duty on 20 July 1971. He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 11B (Infantryman). In November of 1971, after having been diagnosed as suffering from bilateral Osgood Schlatters Disease of the knees, he was given a permanent profile. As a result of this profile, he was reassigned and retrained in MOS 63B (Wheeled Vehicle Mechanic).

The applicant's records contain notations of four negative counseling statements for "not being at his place of duty" and one for missing formation.

He received nonjudicial punishment under the Uniform Code of Military Justice, Article 15, for failure to go to his appointed place of duty, on 7 April 1972.

The applicant is shown to have been absent without leave for the following periods; 1-7 December 1971, 18-19 December 1971, 31 March-4 April 1972, 27 April-15 May 1972, 19-22 May 1972, 29 June-21 July 1972, and 5-17 August 1972.

On 17 August 1972, court-martial charges were preferred for the applicant's last two periods of AWOL, 29 June-21 July 1972, and 5-17 August 1972.

The applicant was afforded a physical examination and mental status evaluation. His behavior was described as normal. He was found to be able to tell right from wrong and to adhere to the right. He met the medical retention standards of Army Regulation 40-501 and was qualified for separation.

On 21 August 1972, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive a bad conduct or dishonorable discharge, that receipt of a discharge under other than honorable conditions would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received such a discharge, and that there is no automatic upgrading or review of a less than honorable discharge. He waived his rights to counsel, to make a statement on his own behalf and to request a rehabilitative transfer.

The discharge authority accepted the recommendation and directed that the applicant be discharged 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 to be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate. He was also barred from the confines of Fort Hood, Texas.

The applicant was discharged on 29 September 1972. His DD Form 214 shows his name as H____, R____ E. II, his SSN as 913-XX-XXXX, his DOB as 5 June 1951, and his home of address as 1063 West 97^th. He is credited with 1 year and 9 days of creditable service and 81 days of lost time.

A review of the documents contained in the applicant's official records shows the following:

His military record contains two notarized copies of a DD Form 373 (Consent, Declaration of Parent or Legal Guardian), dated 19 July 1971. These forms show W____B____, residing at 7114 South Ridgeland, Chicago, as the applicant's legal guardian. The original copy of this form shows the applicant's DOB, a typed entry, as 5 June 1954, with the carbon copy having a pencil change made to make the DOB appear to be 1951.

The applicant's record contains two copies of the DD Form 398 (Statement of Personal History), one apparently completed at the time of his enlistment and the other completed on 24 July 1972. These two documents do not match in several important points. The earlier form lists the applicant's home address as 1749 E. 73^rd, while the later one as at his mother's address, 1063 W. 97^th. The DOB on the earlier form is written "6-5-5X" with the last digit being overwritten and erased to make it appear to read "51". The 1972 form shows at item 8 (Military History) the applicant's grade as E-3 with a service number of 913-XX-XXXX and a date of current active service stated as 20 July 1971. Both forms are blank under the section for previous military service. The earlier form is signed R___ E. H____ III with the latter being signed R____ E___ H_____ II.

At the time of the applicant's enlistment, he reported that he had been arrested on suspicion of burglary. The Chicago Police Department Arrest Report shows that the applicant (at age 17) was arrested, on 13 December 1970, but not charged on suspicion of burglary. His DOB was listed as 5 June 1953 and his address is the same as W____ B_____'s on the DD Form 373 and his godmother's as noted on the 1972 Standard Form (SF) 88 (Report of Medical Examination) referenced below.

The applicant's record contains two copies of the applicant's Enlistment Contract (DD Form 4) dated 20 June 1971. The original lists his DOB as 5 June 1954. The second (a carbon copy) has a pen and ink change showing the applicant's DOB as 5 June 1951.

All of the other documents completed at the time of the applicant's enlistment list his SSN/Service Number as 913-XX-XXXX and show his DOB as 5 June 1954. Documents for the remainder of his service vary as to the applicant's name only in that it is recorded as with or without the parenthetic of II or III but list his DOB predominantly as 5 June 1951.

The SF 88 completed 20 July 1971, shows the applicant's DOB as 5 June 1954. It lists the applicant's home address as 1063 W. 97^th, with a notation showing his next of kin as his "godmother", residing at 7114 S Ridgeland and a sister (S___ N__) at 1700 E 73^rd. The latter two addresses are used at different times as the applicant's home address.

The SF 88 completed at the time of his discharge shows his DOB as 5 June 1951, and lists his sister's address as his home address.

The applicant had applied to the Army Discharge Review Board for an upgrade of his discharge and a change of narrative reason. By its decision, dated 2 July 1975, he was denied any relief.

A Standard Form 180 (Request Pertaining To Military Records) was submitted 15 March 1979. This request listed the applicant as R____ E____ H____ II with a SSN of 643-XX-XXXX and a DOB of 5 June 1954. It reported his period of service as "July 1970 to 2 August 1972".

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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

The Manual for Courts-Martial provides (Rule for Courts-Martial 1003d3) that an individual convicted of two or more offenses for which the authorized confinement totals 6 or more months, may be sentenced to a bad conduct discharge even though a bad conduct discharge is not otherwise authorized.

Army Regulation 635-200, 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 that, if known, might have resulted in rejection. Any incident, which met the foregoing, may be cause for discharge for fraudulent entry.

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, the DD Form 214 should reflect no active service. The Army may choose to either waive or not waive the defect in an enlistment. If the defect is not waived then the enlistment would be void. The applicant, therefore, would not be 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, it is concluded:

1. The applicant has provided no documentation that he had any period of service other than that which is listed on his DD Form 214. His records clearly show that he first entered active duty on 20 July 1971 and was discharged on 29 September 1972.

2. All available documents and records show that the applicant served exclusively under the SSN 913-XX-XXXX. The first indication that he may have had a different SSN is found on the 1975 ADRB application; however, this SSN was not raised as an issue until the current application. Further, in a request for records submitted in 1979, a third SSN is noted which differs significantly from the other two.

3. The applicant has submitted no documentation to show that the SSN he served under was incorrect. He has provided no documentation of what his correct SSN might be, nor explained why he would report different SSNs at different times.

4. The applicant has failed to provide any creditable documentation to show his correct date of birth.

5. There is no indication that the applicant was improperly enrolled in the Army, especially not at the age of 15. There is a sworn statement (DD Form 373 Consent, Declaration of Parent or Legal Guardian) from a W___ B____, attesting to the fact that he was the applicant's guardian and that the applicant was born on 5 June 1954. On another copy of this form, the DOB is listed as 5 June 1951 which would have made him 20. If he were 20, he would not have needed permission or the form to enter the service.

6. All documents of record completed by the applicant, show that his date of birth as either 5 June 1954 or 5 June 1951. In documents prepared and signed by him, subsequent to his induction, he consistently lists his DOB as 5 June 1951. There is no indication on any document that the applicant was born in 1956 or that he entered the Army at age 15.

7. The Board notes that if the DD Form 373 was not valid, because the person signing it was not his legal guardian or because he was underage, then the applicant's enlistment should be voided. However, the applicant has provided no evidence that the original DD Form 373 is invalid or incorrect.

8. The applicant voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial. The discharge was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress, and the characterization of his service was appropriate.

9. 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.

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

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INDEX

CASE ID	AR2001063562
SUFFIX
RECON
DATE BOARDED	20020627
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.70
2.	144.62
3.	144.9301
4.	144.9905
5.
6.