MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 May 2003
         DOCKET NUMBER: AR2002078685

         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 Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Roger W. Able		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: In effect that his undesirable discharge be upgraded to an honorable discharge.

APPLICANT STATES: That he went home on leave because he had a death in the family. He states that stayed home for 60 days to find housing for his wife and children and that he called Fort Belvoir to inform the officer in charge of his situation. He further states that he was arrested after being absent without leave (AWOL) for 60 days and he was taken back to Fort Belvior where he had to appear before a Judge Advocate General officer. He states that his work record was excellent up to the time that he went AWOL and that he wants his discharge to be upgraded because he needs to be able to apply for VA benefits. In support of his application, he submits a copy of a letter from the American Biographical Institute, Incorporated informing him of his nomination for biographical recognition in the fourteenth edition of Outstanding Personalities of the South.

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

On 4 February 1974, he enlisted in the Army for 2 years in Charlotte, North Carolina, in the pay grade of E-1. He successfully completed basic combat training and he was promoted to the pay grade of E-2 on 11 April 1974. On 13 April 1974, he was transferred to Fort Belvior, Virginia.

Nonjudicial punishment was imposed against the applicant on 21 June 1974, for failure to go to his appointed place of duty. His punishment consisted of a forfeiture of pay in the amount of $25.00, extra duty for 7 days and restriction for 7 days.

On 15 May 1974, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, based on fraudulent entry. He acknowledged receipt of the notification and he requested to have his case considered by a board of officers.

A board of officers convened on 24 June 1974, to determine whether the applicant should be discharged from the Army under the provisions of Army Regulation 635-200, chapter 14, based on fraudulent entry because at the time of his enlistment, the applicant failed to reveal his civilian felony convictions. Prior to his entry on active duty, he was convicted of one count of assault on a female for which he was sentenced to 6 months, five counts of breaking and entering, larceny and receiving and one count of breaking and entering and destroying personal property for which he was sentenced to 1 year. During the board proceedings, the applicant’s commanding officer testified that the applicant’s conduct had been excellent and that he was a hard worker up until



the day he went AWOL on the date of the initial board hearing. The commander stated that he was one of the better troops in the unit and once he spoke with the applicant he was informed that the people in the company started telling him that the word fraud meant an automatic 10 years in jail. The commander went on to state that after reviewing the facts in the matter he opted to administer NJP and that since he returned from being AWOL, his conduct was excellent. The commander stated that in most areas, the applicant was an above average soldier.

After receiving testimony from several individual in the applicant’s company, the board of officers determined that the applicant was desirable for further retention in the military service and recommended that he be retained in the service.

The applicant went AWOL on 19 July 1974 and he was dropped from the rolls as a deserter on 19 August 1974.

On 20 September 1974, the acting commander recommended that the applicant be discharged from the Army for fraudulent entry stating that this was his second AWOL offense and that it was quite clear that he was no longer retention quality.

The appropriate authority approved the recommendation for discharge on 13 November 1974. Accordingly, on 21 November 1974, the applicant was discharged in absentia under the provisions of Army Regulation 635-200, chapter 14, based on fraudulent entry. He had completed 5 months and 16 days of total active service and he had 126 days of lost time due to AWOL. He was furnished an Undesirable Discharge Certificate.

Further review of the applicant’s records shows that civil authorities apprehended the applicant on 21 November 1974, on the charge of felonious breaking and entering and he was confined to the Montgomery Country jail in Troy, North Carolina.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for fraudulent entry. It states, in pertinent part, that upon receipt of the recommended action, the commander exercising general
court-martial jurisdiction will determine whether the fact of fraudulent entry has




been verified and proven. If the fraudulent entry is verified, the general
court-martial convening authority will also direct discharge and issuance of an Honorable, General, or Undesirable Discharge Certificate, provided the individual has waived his rights to present his case before a board of officers or direct that a board of officers be convened to determine whether the individual should be discharged. The same regulation also states that if a board of officers recommends discharge, the type of discharge certificate to be issued will be specified and an Undesirable Discharge Certificate may be issued if appropriate.

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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

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

3. The Board has noted the applicant’s contentions. However, they are unsubstantiated by the evidence of record. There is no evidence of record that shows that he went AWOL as a result of a death in his family. However, the records do show that after a board of officers recommended that he be retained in the Army, he went AWOL and he remained absent for 126 days before he was discharged.

4. He was discharged in absentia and he was later arrested by civil authorities and charged with felonious breaking and entering. In view of his acts of indiscipline, it does not appear that his undesirable discharge was too severe.

5. 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.

6. 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

___ra ___ ___tap __ ___ao___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078685
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/05/15
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19741121
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	644
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 644	144.6200
2. 652	144.6301
3.
4.
5.
6.