RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 July 2005
      DOCKET NUMBER:   AR20040007420


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 (with his original application), in effect, that
his 16 April 1990 discharge under the provisions of Army Regulation 635-
200, chapter 10 be changed to a discharge for erroneous enlistment and that
all documents related to the chapter 10 discharge be expunged from his
records; that he be paid for 19.5 days of accrued leave; that he be paid
basic pay for the period 1 through   15 November 1988; that "something" be
done about the DD Form 214 (Certificate of Release or Discharge from Active
Duty) for the period ending      15 November 1988 that contains a forged
signature; that all veterans benefits be restored; and, in effect, that his
reductions from Sergeant, E-5 to Private, E-2 in the Georgia Army National
Guard (GAARNG) while he was on active duty in the Regular Army in 1989 be
voided.

2.  The applicant states that his original application was submitted with
his application to the Army Discharge Review Board (ADRB) but was never
processed.  In his original application, he stated that the GAARNG had a
vendetta against him.  His leave and earnings statements (LESs) show that
from 1 January 1989 through 2 October 1989 he was reduced from E-5 to E-2.
His GAARNG discharge orders show he was discharged on 2 October 1989 in the
rank and grade of Private First Class, E-3 for not attending weekend
drills.  His ARNG unit knew he enlisted in the Regular Army on 2 February
1989.  His Regular Army recruiter should have gotten a letter of release
from his ARNG unit. His DD Form 1966/3 (Record of Military Processing –
Armed Forces of the United States) shows that his recruiter knew he was in
the GAARNG.

3.  The applicant states that the ADRB told him he could apply to the
Defense Finance and Accounting Service (DFAS) for any monetary benefits he
might be entitled to as a result of his discharge upgrade.  However, DFAS
denied him due to the Barring Act.  His LES for November 1988 shows he
received no pay for the period 1 through 15 November 1988, no pay for
accrued leave, and no separation or severance pay.

4.  The applicant states that, in 1989 while on active duty, before he was
ever charged with an offense, he received an order from the GAARNG reducing
him to Private First Class.  He thought it was a joke.  Then he started
having problems with his first sergeant.  He was charged with wrongfully
using a controlled substance.  He was having marriage problems and his wife
could have given him something without his knowledge.  He was coerced into
signing the Article 15.  Then finance just totally messed up his pay
records.  He refused to stay and work without being paid for it.  He asked
for a discharge and was refused so he left because there was too much
pressure for him to take.  So he went absent without leave (AWOL) until the
Army would discharge him.
5.  The applicant states that he did not sign copy 4 of the DD Form 214 for
the period ending 15 November 1988 and it contains a forged signature.

6.  The applicant states that the discharge he received on 16 April 1990
was improper because he has discovered he was not fully qualified for
enlistment and he should have been separated for erroneous enlistment.  His
recruiter never received a letter of release from his GAARNG unit.  Also,
he discovered he had a pre-existing medical condition that would have
disqualified him for enlistment.  He did not knowingly conceal that
information.  He knew only that he was diagnosed with an acute allergic
response to chigger bites and did not know he had an STD (sexually-
transmitted disease) that should have led the GAARNG to send him to a
medical evaluation board.

7.  In his application to the ADRB, the applicant stated he had
spondylolysis of the thoracic spine which is from a parasitic infection and
he also has mononucleosis with chronic pains and chronic fatigue.  He also
provided Department of Veterans Affairs (DVA) records, one dated 29 October
1998 to show he was treated for an STD, and one dated 1 May 2002 to show he
was treated for chronic pain and chronic fatigue.

8.  The applicant provides, with his current application to the Army Board
for Correction of Military Records (ABCMR), LESs from 1988 through 1990; a
       28 March 2003 letter from the ADRB; a 6 May 2002 letter from the
GAARNG; discharge orders from the GAARNG; copies 2 and 4 of his DD Form 214
for the period ending 15 November 1988; his original DD Form 214 for the
period ending 16 April 1990 and the DD Form 214 for this period issued by
the ADRB; a         29 April 2003 letter from the Army Review Boards
Agency; a letter from DFAS dated 4 June 2003; his DD Form 1966/3 dated 1
February 1989; and a DA Form 4836 (Oath of Extension of Enlistment or
Reenlistment) dated 4 August 1985.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army on 22 July 1980,
was awarded military occupational specialty 75D (Personnel Records
Specialist), and was honorably released from active duty on 20 July 1984.

2.  On 20 August 1984, the applicant enlisted in the ARNG for 1 year.  On
        4 August 1985, he extended his enlistment for a period of 6 years,
making his new expiration term of service (ETS) 19 August 1991.

3.  On 31 August 1986, the applicant entered active duty in an Active Guard
Reserve (AGR) status in a 75B (Personnel Administration Specialist) unit
clerk position.
4.  On 25 July 1988, the applicant was treated for a diagnosis of chigger
bites and acute allergic response to chigger bites.

5.  On 26 August 1988, the applicant declined to be considered by an AGR
tour continuation board and requested that his AGR status be voluntarily
terminated effective 2 September 1989.  On 5 October 1988, he requested
that his AGR status be voluntarily terminated effective 4 November 1988 due
to personal reasons within his unit of assignment and battalion
headquarters.

6.  On 15 November 1988, the applicant was released from active duty.  Item
     9 (Command to which transferred) of his DD Form 214 for the period
ending     15 November 1988 contains the entry, "NA."  Item 17 (Days
Accrued Leave Paid) on copy 2 of the DD Form 214 is blank; copy 4 contains
the entry, "19.5."  Both copies 2 and 4 appear to have carbon signatures.
The signatures appear to be the same.

7.  The applicant's LES for the period 1 through 30 November 1988 show that
he had no pay entitlement, no pay earned, no end of month payment made, and
that he performed no drills.  His LESs for the periods 1 through 30
September 1988 and 1 through 31 October also indicate he had no pay
entitlement, no pay earned, no end of month payment made, and that he
performed no drills.

8.  On 30 December 1988, the applicant completed a DD Form 2246 (Applicant
Medical Prescreening Form).  On that form, he indicated that he did not
have any medical problems to include no back trouble, no painful or "trick"
joints or loss of movement in any joint, and no other medical problems or
defects of any kind.

9.  On 6 January 1989, the applicant completed an enlistment physical
examination.  He was found to be qualified for enlistment with no medical
conditions noted except for being 8 pounds overweight.

10.  On 6 January 1989, the applicant enlisted in the U. S. Army Reserve
(Delayed Entry Program).  On his DD Form 1966/2, item 26 (Employment), the
applicant indicated that he was employed by the GAARNG from July 1986 to
November 1988 and unemployed from November 1988 to the present.  On his DD
Form 1966/3, item 28, (Are you now or have you ever been in any regular or
reserve branch of the Armed forces or in the Army National Guard or the Air
National Guard? (Give your recruiter the appropriate DD Form 214 and/or DD
Form 215 or NGB Form 22 for review)), the applicant checked, "yes."

11.  The applicant enlisted in the Regular Army on 1 February 1989 in pay
grade E-4.  He was awarded military occupational specialty 76X (Supply
Subsistence Specialist).

12.  On 10 July 1989, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for wrongfully using cocaine
between 30 April 1989 and 31 May 1989.  His punishment was a reduction to
pay grade E-2, a forfeiture of $391.00 pay per month for two months
(suspended); 45 days restriction (suspended), and extra duty for 45 days.
He appealed the punishment.  On 27 July 1989, his appeal was denied.

13.  The applicant provided LESs for the period January through October
1989 from his ARNG service.  The LES for the month of June 1989 shows he
was reduced to pay grade E-4 on 20 May 1989 and to pay grade E-3 on 23 May
1989.  His LES for the month of August 1989 shows he was reduced to pay
grade E-2 on 28 August 1989.

14.  Company B, 560th Engineer Battalion, GAARNG orders 10-1 dated
  28 August 1989 reduced the applicant from E-3 to E-2 for misconduct under
the provisions of National Guard Regulation (NGR) 600-200, paragraph 6-44a.

15.  State of Georgia, Department of Defense, Military Division, Office of
the Adjutant General Orders 187-2 dated 19 September 1989 discharged the
applicant from the ARNG and transferred him to the U. S. Army Reserve
Control Group (Reinforcement) effective 2 October 1989 under the provisions
of NGR 600-200, paragraph 8-27f.  Item 18 (Remarks) of his NGB Form 22
(Report of Separation and Record of Service) shows he was discharged
effective 2 October 1989 without notice due to his whereabouts being
unknown.

16. On 13 October 1989, court-martial charges were preferred against the
applicant charging him with being AWOL from 18 August 1989 through 4
October 1989.

17.  On 13 October 1989, after consulting with legal counsel, the applicant
voluntarily requested a discharge under the provisions of Army Regulation
  635-200, chapter 10 in lieu of trial by court-martial.  In this request,
he admitted guilt to the offense, or a lesser included offense.  He
indicated that he understood he could receive a discharge under other than
honorable conditions and that he might be deprived of many or all Army and
veterans benefits.  He did not submit a statement in his own behalf

18.  On 28 March 1990, the appropriate authority approved the applicant's
request and directed he receive a discharge under other than honorable
conditions.

19.  On 16 April 1990, the applicant was discharged, in pay grade E-1,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by court-martial, with a characterization of service of under other
than honorable conditions.  He had completed 1 year and 1 month of
creditable active service that period and a total of 9 years, 7 months, and
8 days of service for pay and had 47 days of lost time.

20.  The applicant provided a DVA medical record that shows that on 29
October 1998 he was diagnosed with a sexually-transmitted disease after
having had unprotected sexual activity with a girl the previous week.  He
was treated with Acyclovir topically.

21.  The applicant provided a DVA medical record that shows that on 1 May
2002 he was treated for several vague complaints.  The DVA medical record
indicated that he had "…brought me records saying that at one time he had
chiggers.  He was not told at that time it was herpes infection.  He was
treated at that time with Acyclovir."  He was worked up (in May 2002) for
his fatigue and was noted to have an infection, mononucleosis antibody
positive.

22.  On 13 March 2002, the ADRB determined that the applicant's reason for
discharge and the characterization of service were both proper and
equitable and voted to deny relief.

23.  On 28 March 2003, in a personal appearance hearing, the ADRB found
that the applicant's length and quality of his service partially mitigated
his misconduct and voted to upgrade his discharge to general under
honorable conditions.  The ADRB had considered the applicant's contentions
that his enlistment had been erroneous and that he had a pre-existing
medical condition that should have prevented his enlistment.  However, the
ADRB determined that the reason for his discharge was both proper and
equitable and voted not to change it.  His DD Form 214 was reissued to show
he separated in pay grade E-2.  He was informed he could apply to DFAS for
any monetary benefits to which he might be entitled by virtue of the change
in his discharge.

24.  By letter dated 4 June 2003, DFAS informed the applicant that his
claim was being returned due to the Barring Act of 1940.  Since his claim
for back pay accrued on 15 November 1988 and it was received more than 6
years after the date it accrued, it was barred from consideration under the
provisions of the Barring Act.  In regards to his upgraded discharge, the
only entitlement due would have been for payment of accrued leave.
However, he had been paid 40.5 days accrued leave on his discharge of 20
July 1984 and 19.5 days on his discharge of 15 November 1988 for a total of
60 days accrued leave.  He was informed that In accordance with the
Department of Defense Financial Management Regulations, Volume 7A, the
maximum number of leave days that can be sold in a military career is 60
days.

25.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides
that a member who has committed an offense or offenses for which the
authorized punishment includes a punitive discharge may, at any time after
the charges have been preferred, submit a request for discharge for the
good of the service in lieu of trial by court-martial.  The request must
include the individual’s admission of guilt.  A discharge under other than
honorable conditions is normally considered appropriate.

26.  Army Regulation 635-200, in pertinent part, states that a Soldier may
be separated on the basis of erroneous enlistment.  An enlistment is
erroneous if it would not have occurred had the relevant facts been known
by the Government, it was not the result of fraudulent conduct on the part
of the Soldier, and the defect is unchanged in material respects.  Soldiers
separated under this paragraph will be awarded an honorable character of
service.

27.  Army Regulation 635-200, in pertinent part, states that fraudulent
entry is the procurement of an enlistment through any deliberate material
misrepresentation, omission, or concealment of information which, if known
and considered by the Army at the time of enlistment, might have resulted
in rejection.  An honorable, general under honorable conditions, or an
under other than honorable conditions character of service may be directed.
 In determining the character of service to be issued, evidence of
preservice misrepresentation which would have precluded, postponed, or
otherwise affected the Soldier’s enlistment eligibility may considered.
The offense of fraudulent enlistment occurs when the Soldier accepts pay or
allowances following enlistment procured by willful and deliberate false
representation or concealment of his or her qualifications.

28.  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 in the version in effect
at the time, it stated that the separatee would sign in item 21.  Signature
of the member must be legible on all copies.  A second signature could be
needed on copy 4.  (Carbon paper was permanently affixed between each copy
in the set.)

29.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 In pertinent part, it states that the mere presence of an impairment does
not, of itself, justify a finding of unfitness because of physical
disability.

30.  NGR 600-200, paragraph 6-44 states that Soldiers could be reduced for
inefficiency.  Inefficiency is defined not only as technical incompetence
but also as patterns or acts of conduct demonstrating that the Soldier
concerned lacks the abilities and qualities required and expected of a
Soldier of his or her rank and experience.  Commanders may consider any
misconduct, to include a record of unexcused absences or unsatisfactory
participation, as evidence of inefficiency.

31.  The Department of the Army Financial Management Regulation, Volume 7A
states in pertinent part that, beginning on 20 June 1991, separation pay
was authorized to certain enlisted members who had the prescribed
qualifying service as of 5 November 1990.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his discharge of 1 April 1990 be changed to
an erroneous enlistment because his Regular Army recruiter never requested
a letter of release from his GAARNG unit.

2.  The applicant contended he indicated on his DD Form 1966/3 that he was
in the ARNG.  However, all that form did was ask whether he was now or had
been at one time in the ARNG and, if so, he was required to give his
recruiter his DD Form 214 or NGB Form 22.  The applicant contends he gave
his recruiter his    DD Form 214 for the period ending 15 November 1988.
However, that DD Form 214 indicated that he had not been returned to an
ARNG unit after his release from active duty.  Combined with the applicant
indicating on his DD Form 1966/2 that he was employed by the GAARNG from
July 1986 to November 1988 but unemployed from November 1988 to the
present, it appears reasonable for his recruiter to have presumed he did
not have a current ARNG status.

3.  The applicant provided insufficient evidence to show he told his
recruiter he was still in the ARNG.  In addition, it appears he continued
to receive LESs for his ARNG service in all the months he served in the
Regular Army.  He provides insufficient evidence to show he ever informed
his Regular Army commander he still held an ARNG status.  He provides
insufficient evidence to show he ever contacted his ARNG unit or other ARNG
officials that he had enlisted in the Regular Army and needed a release.

4.  Had the relevant facts concerning his ARNG status been known by the
Army at the time the applicant enlisted, it is possible a letter of release
could have been obtained.  Therefore, the regulatory requirements for a
separation for erroneous enlistment would not have been met. On the other
hand, there is some evidence of record to indicate the applicant concealed
his ARNG status.  It is possible he could have been separated for
fraudulent enlistment.

5.  As far as changing his separation to an erroneous enlistment due to his
medical conditions, there is no evidence of record to support the
applicant's contention that he had medical conditions that would have
precluded his enlistment in the Regular Army on 1 February 1990.  He
completed a DD Form 2246 on 30 December 1988 wherein he indicated that he
had did not have any medical problems to include no back trouble, no
painful or "trick" joints or loss of movement in any joint, and no other
medical problems or defects of any kind.  On 6 January 1989, he completed
an enlistment physical examination and was found to be qualified for
enlistment with no medical conditions noted except for being 8 pounds
overweight.

6.  It was not until the DVA records dated 29 October 1998, 8 years after
the applicant separated, that there is evidence the applicant was diagnosed
with an STD after having had unprotected sexual activity with a girl the
previous week.  He was treated with Acyclovir topically.

7.  The DVA treated the applicant for several complaints on 1 May 2002 and
it was in that May 2002 document that it was noted "…he was not told at
that time it was herpes infection" and he "was treated at that time with
Acyclovir."  However, the available evidence shows he was treated with
Acyclovir not while he was in the Army but in 1998.  It was also the May
2002 document that provides the first indication he had an infection,
mononucleosis antibody positive, 12 years after he separated.

8.  The applicant provides insufficient evidence to show he had any medical
condition that rendered him medically unacceptable for enlistment in the
Regular Army or medically unfit for service while in the ARNG.

9.  In June 2003, DFAS informed the applicant that he had already been paid
  for his 19.5 days of accrued leave from his active duty service ending on
          15 November 1988.  He provides insufficient evidence to show
otherwise.

10.  In June 2003, DFAS informed the applicant that they could not consider
his claim for nonreceipt of pay due for the period 1 through 15 November
1988 due to the Barring Act.  That issue was unrelated to the ADRB's
upgrade of his discharge and therefore the Barring Act was correctly
invoked by DFAS.

11.  It is noted the LES for the period 1 through 30 November 1988
indicates the applicant did not receive any pay; however, his LESs for the
two previous months also indicated he received no pay and yet he does not
contend he was not paid for those months.  Therefore, the LES for the
period 1 through 30 November 1988 alone is insufficient evidence on which
the ABCMR could favorably consider this portion of his request.

12.  The applicant's DD Form 214 for the period ending 15 November 1988
does not appear to contain a forged signature.  The DD Form 214 was a
multiple-copy record set with carbon paper between copies.  If the
signature on copy 1 was firm enough, only one signature was required.  The
applicant acknowledges signing the DD Form 214 once.  It appears his
signature was firm enough to have appeared on copy 4.

13.  The fact the DD Form 214 was a multiple-copy carbon set most likely
accounts for the fact copy 4 of the applicant's DD Form 214 for the period
ending 15 November 1988 showed he had 19.5 days of accrued leave and copy 2
did not.  Such an omission could have been the result of a defective carbon
sheet or a crinkle in the carbon sheet between copies 1 and 2.

14.  The applicant's veterans benefits should have been restored when the
ADRB upgraded his discharge to general under honorable conditions.
However, the Department of the Army has no jurisdiction over Department of
Veterans Affairs, which operates under its own policies and procedures.
Any questions concerning his veterans benefits should be addressed to the
DVA.

15.  The applicant was reduced from pay grade E-5 to pay grade E-2 by the
ARNG because it appears the GAARNG did not know he had enlisted in the
Regular Army and therefore did not excuse his absences from drill.  The
applicant provides insufficient evidence to show the GAARNG was aware he
was in the Regular Army and reduced him because it had conducted a
"vendetta" against him.

16.  The applicant was separated from active duty before separation pay was
authorized to enlisted members.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __lcb___  __jbg___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            __William D. Powers___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040007420                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050728                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.02                                  |
|2.                      |128.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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