PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 20 May 2003
         DOCKET NUMBER: AR2003083818


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

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Hall		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Jose A. Martinez		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to "honorable-erroneous."

3. The applicant states, in effect, that he enlisted in the Army on 30 April 1982. He was advised by his recruiter to sign his enlistment papers and that he (the recruiter) would "take care" of the DD Form 214 issued by the Marine Corps. He believes that his character of service rendered by the Army should be changed to honorable due to the fact that his enlistment was under the control of the recruiter. He further stated that at the very least his separation should have been described as "honorable-erroneous enlistment." He is also requesting a copy of his DD Form 214 issued by the Marine Corps.

4. The applicant's military records contain a DD Form 214 issued by the Marine Corps. The DD Form 214 shows that the applicant enlisted in the Marine Corps on 26 February 1968. On 16 April 1968, he received an honorable discharge. Item 11c (Reason and Authority) shows "Convenience of the Government (Erroneous Enlistment)." He was apparently discharged for medical reasons.
The applicant’s DD Form 214 issued by the Marine Corps refers to a Bureau of Medicine and Surgery (BUMED) Instruction as the reason and authority for discharge.

5. On 30 April 1982, at 33 years of age, the applicant enlisted in the Regular Army for a period of 3 years.

6. Item 24a (Military Service) of his DD Form 1966/2 (Application for Enlistment-Armed Forces of the United States) shows that he failed to disclose/reveal his prior active duty service in the Marine Corps.

7. On 25 May 1982, the applicant was notified by his commander of his intention to initiate elimination action on him under the provisions of Army Regulation
635-200, chapter 14, for misconduct-fraudulent entry.

8. On 26 May 1982, the applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. The applicant indicated with his initials on a written statement to his counsel that at the time of his enlistment his recruiter was unaware of his circumstances. He further indicated on the written statement with his initials that he did not desire to make a statement regarding his recruiter's knowledge of the circumstances. He was afforded the opportunity to submit statements in his own behalf but declined to do so.

9. On 27 May 1982, the applicant underwent a mental evaluation which determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings. However, the psychologist noted that the applicant expressed the desire to continue his military career.

10. On 2 June 1982, the applicant's unit commander recommended that the applicant be retained on active duty and allowed to complete his contractual obligation of 3 years.

11. On 3 June 1982, the applicant's battalion commander concurred with the unit commander and recommended retention.

12. On 14 June 1982, the applicant's brigade commander recommended that the applicant be retained on active duty.

13. On 21 June 1982, the installation commander recommended the applicant's retention on active duty.

14. On 16 July 1982, the Commander, Military Personnel Center, Alexandria, Virginia, (the approval authority) disapproved retaining the applicant on active duty and directed the applicant's discharge under Army Regulation 635-200, chapter 14, misconduct-fraudulent entry.

15. On 23 July 1982, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 14 for misconduct-fraudulent entry. His DD Form 214 shows he was given a character of service of "NA" and a Separation Code of "YKG" (involuntary discharge under Army Regulation
635-200, chapter 14, misconduct fraudulent entry).

16. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. In the version in effect at the time, chapter 14 established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct.

17. In the current version of Army Regulation 635-200, chapter 7 (Defective Enlistment/Reenlistments and Extension), paragraph 7-17, establishes policy and prescribes procedures for fraudulent entry.

18. Army Regulation 635-200, paragraph 1-18, states that unless the reason for separation requires a specific characterization, a soldier will be awarded an uncharacterized description of service if in an entry-level status. (For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty)

19. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation at the time showed that the SPD “YKG” as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as “Fraudulent Entry" and the authority for discharge under this SPD was “Army Regulation
635-200, chapter 14."

20. Army Regulation 635-5-1, the current version, shows "JDA" as the SPD when the authority for discharge is Army Regulation 635-200, chapter 7, section V, Fraudulent Entry.

21. Army Regulation 635-5 prescribes the separation documents prepared for soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. In pertinent part it states that the correct entry is vital since it affects a soldier's eligibly for past service benefits. Characterization or description of service is determined by directives authorizing separation. The current version states that for a soldier being released from custody and control of the Army due to a void enlistment "hyphens" are entered in item 24.

CONCLUSIONS:

1. The Board considered the applicant's request to correct item 28 (Narrative Reason for Separation) of his DD Form 214 and to be furnished a copy of his
DD Form 214 issued by the Marine Corps.

2. The Board reviewed the applicant's personnel service records and determined
his separation under Army Regulation 635-200, chapter 14 (misconduct-fraudulent entry) was proper at the time. The Board noted that at the time he absolved his recruiter of all blame. However, the authority for separation for fraudulent entry was later moved to chapter 7, (section V, (Fraudulent Entry)).

3. To preclude any perceived bias against the applicant, it would be equitable to now correct his DD Form 214 to show his authority and narrative reason for discharge as Army Regulation 635-200, chapter 7, Fraudulent Entry SPD JDA.

4. The entry describing the applicant's character of service, i.e. "NA" was proper at the time. The current regulation provides that the entry in item 24 should be hyphens. It would be equitable to correct item 24 to reflect current standards.

5. As the applicant was discharged for fraudulent entry it would not be equitable to show he was given an honorable discharge. Even if he had not been discharged for fraudulent entry, his description of service would have been uncharacterized as he had less than 180 days of continuous active duty.

6. In view of the foregoing, the applicant’s records should be corrected but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

a. voiding the applicant's current DD Form 214 ending date of 23 July 1982; and

         b. reissuing his DD Form 214 to show his authority for separation as
Army Regulation 635-200, chapter 7, his narrative reason as fraudulent entry, his SPD as JDA, and entering hyphens in item 24.

2. That the applicant be furnished a copy of his Marine Corps DD Form 214.

3. That so much of the application requesting his narrative reason for separation be changed to erroneous enlistment and describing his service as honorable be denied.

BOARD VOTE:

__DSJ__ __MHM__ __JAM __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Mr. Melvin H. Meyer_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003083818
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030520
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Karl Schneider
ISSUES 1.	100.0000
2.
3.
4.
5.
6.