RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 October 2004
      DOCKET NUMBER:   AR2003091587


      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             |
|     |Mr. Klaus P. Schumann             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Linda D. Simmons              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a change to the narrative reason for
separation listed on his separation document (DD Form 214), effective 12
March 1985.

2.  The applicant states, in effect, that he doesn't understand why his
separation document shows fraudulent entry when his police record was
supposedly cleared at the recruiting office and his offenses were waived to
allow for his reenlistment.

3.  The applicant provides a self-authored statement and a copy of his DD
Form 214 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 March 1985.  The application submitted in this case is
dated 22 January 2004.

2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows that he initially enlisted and entered
active duty on 6 November 1984.  He completed One Station Unit Training
(OSUT) at
Fort Sill, Oklahoma and was awarded military occupational specialty (MOS)
15E (Pershing Missile Crewmember).  The applicant's military service record
documents no acts of valor, significant achievement, or service warranting
special recognition.
4.  The applicant's military records contain a copy of his enlistment
contract, which includes a DD Form 1966/5 that contains background data on
the applicant.  This form shows, in Section IV (Other Background Data),
that the applicant responded "No" to the question "Have you ever been
involved in the use, purchase, possession, or sale of marijuana, LSD, or
any other harmful or habit forming drugs and/or chemicals, except as
prescribed by a licensed physician?"

5.  In Section IV, Item 6a of the DD Form 1966/5, the applicant responded
"Yes" to the question "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
guilty?"

6.  The applicant responded “Yes” to the following question contained in
Item 6b of the DD Form 1966/5:  "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)?"  In Item 6f he indicated he was charged with the offense of
negligent driving and driving without a license and was required to pay a
fine for each of these offenses.  He disclosed no other arrests or
convictions in his enlistment documents.

7.  In his enlistment contract, the applicant acknowledged, by placing his
initials in the appropriate block, that he understood that the answers he
provided to any questions regarding his background would be verified with
the Federal Bureau
of Investigation (FBI) and other Agencies.  He further acknowledged that he
understood that if he concealed such records at the time of his enlistment,
he would be subject to disciplinary action and/or discharge or separation
from the military service with other than an honorable discharge.
8.  The applicant's military record contains a Defense Investigative
Service (DIS) Report of Investigation (DIS Form 1).  This document reveals
an extensive police record on the applicant that includes charges for the
following offenses:  failing to stop at a stop sign; speeding; driving
while intoxicated; driving with a suspended license; minor in possession of
alcohol; trespassing, shoplifting; and burglary.  There is no indication
that the applicant disclosed this information prior to his entry on active
duty.

9.  On 21 February 1985, the unit commander recommended that the applicant
be separated under the provisions of Army Regulation 635-200, Chapter 7, by
reason of fraudulent enlistment.  The unit commander stated that the reason
for this action was that the applicant materially misrepresented his
contract of enlistment in the Army by excluding his past criminal record.

10.  On 21 February 1985, after being counseled on the basis for the
contemplated separation action by his unit commander, the applicant waived
his right to submit written statements in his own behalf or to have a
separation medical examination.  He also indicated that he understood that
he would not be permitted to apply for reenlistment in the United States
Army within two years of his separation.

11.  On 6 March 1985, the separation authority approved the separation
action and directed that the applicant be discharged under the provisions
of Army Regulation 635-200, Chapter 7, by reason of fraudulent enlistment.
He also directed that the applicant receive an entry-level separation with
uncharacterized characterization of discharge.  On 12 March 1985, the
applicant was separated accordingly while still in an entry-level status.

12.  The DD Form 214 issued to the applicant upon his separation confirms
he received an uncharacterized separation, by reason of fraudulent entry.
It also shows that he completed 4 months and 7 days of creditable active
military service at the time of his separation.
13.  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.

14.  The separation regulation further stipulates that 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 AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant failed to
disclose his past criminal record at the time of his enlistment.
Therefore, lacking evidence to the contrary, there is no basis to change
the narrative reason for separation on the applicant's separation document.

2.  The evidence of record also confirms that the applicant’s discharge
processing was accomplished in accordance with the applicable regulation in
effect at the time.  The record further shows that all requirements of law
and regulation were met and that the applicant’s rights were fully
protected throughout the separation process.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 March 1985.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 11 March 1988. However, he did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_RTD____  __FNE__  _LDS___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                 __Fred N. Eichorn________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091587                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/10/14                              |
|TYPE OF DISCHARGE       |UNCHAR                                  |
|DATE OF DISCHARGE       |19850312                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 360   |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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