RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           12 August 2004
      DOCKET NUMBER:  AR2004102494


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Ann Campbell                  |     |Chairperson          |
|     |Mr. James Anderholm               |     |Member               |
|     |Mr. John Infante                  |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests "upgrade to a general discharge."  In effect,
the applicant is requesting amendment of his DD Form 214 (Report Of
Separation From Active Duty) to show a characterization of service in item
9e (Character of Service) of "Under Honorable Conditions"; to show the
entry "DD Form 257A
[General Discharge Certificate]" in item 9f (Type of Certificate Issued)
and to show the years, months, and days of his service in item 18a (Net
Active Service This Period).

2.  The applicant provides a DD Form 214 (Report Of Separation From Active
Duty) with the effective date of 15 April 1977.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 April 1977, the date of his "release from military control."
 The application submitted in this case is dated 23 October 2003.

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 enlisted in the Regular Army on 20 August 1976.

4.  The applicant's service personnel records do not contain all of the
applicant's separation processing documentation.  However, the applicant's
service personnel records contain a copy of his enlistment contract
records, results of a Federal Bureau of Investigation (FBI) background
report, and Fort Sill, Oklahoma, letters pertaining to his separation.

5.  The applicant’s personnel records contain a DD Form 1966/5 (Application
for Enlistment - Armed Forces of the United States), dated 19 August 1976.
Item
40 (Involvement With Police or Judicial Authorities) of this form shows
that the applicant indicated that he had never been arrested, charged,
cited or held by law-enforcement or juvenile authorities.


6.  The applicant also indicated that he had never been convicted, fined or
forfeited bond, nor had he ever served time in a jail or prison.

7.  A FBI report shows the applicant had been charged for grand larceny,
assault to murder, and shoplifting.  He was convicted for petty larceny
that resulted in civil conviction.

8.  The applicant's personnel records contain a DD Form 4 (Enlistment or
Reenlistment Agreement - Armed forces of the United States), dated 20
August 1976.  This form shows that the applicant enlisted in the United
States Army for a period of three years.

9.  On 22 March 1977, the applicant’s unit commander initiated action to
separate him for fraudulent entry under the provisions of chapter 14 of
Army Regulation 635-200 (Enlisted Personnel).  The basis for this action
was concealment of his criminal charges at the time of his enlistment.

10.  On 29 March 1977, the intermediate commander recommended that the
applicant be discharged under the provisions of chapter 14 of Army
Regulation
635-200 for fraudulent enlistment.

11.  On 6 April 1977, the senior intermediate commander recommended the
applicant’s discharge under the provisions of chapter 14 of Army Regulation

635-200 for fraudulent enlistment.

12.  On 14 April 1977, the major general in command of Fort Sill, Oklahoma,
approved the applicant’s discharge under the provisions of chapter 14 of
Army Regulation 635-200 and directed that orders be issued to void the
applicant's enlistment contract.

13.  On 15 April 1977, the applicant was separated under provision of
chapter 14 of Army Regulation 635-200.  His DD Form 214 shows in item 9a
(Type of Separation) the entry "released from military control by reason of
void enlistment (Format 505)."  Item 24 (Remarks) of this DD Form 214 shows
the entry "Reference Item 9c: (Authority and Reason) Misconduct-Fraudulent
Entry.

14.  On 27 May 1993, the Army Discharge Review Board (ADRB) considered the
applicant’s request to upgrade his discharge.  The ADRB unanimously
determined that the discharge was proper and equitable and denied his
request.

15.  Army Regulation 635-200, chapter 14, in effect at the time, provided,
in effect, that commanders exercising general court-martial jurisdiction,
were authorized to convene a board of officers and to approve a discharge
of an enlisted person for fraudulent enlistment or to void a fraudulent
enlistment by releasing an individual from Army control because of
fraudulent entry.  That regulation also provided that the commander could
also direct that individuals be
retained in service, provided the individual entered the service with a
waivable disqualification.

16.  Army Regulation 635-200, provides that a general discharge is a
separation from the Army under honorable conditions.  When authorized, it
is issued to a soldier whose military record is satisfactory but not
sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

17.  Army Regulation 635-5 (Separation Documents) serves as the authority
for the preparation of the DD Form 214.  The regulation in effect at the
time provides, in pertinent part, that individuals who have their
enlistments voided by reason of fraudulent enlistment, would receive no
credit for service nor would their service be characterized.

18.  The Department of Defense Military Pay and Entitlements Manual (also
known as the DOD Pay Manual) provides in pertinent part (10103), that time
spent in an enlistment which is determined to be fraudulent and is
specifically terminated by reason of fraud is not creditable service.  A
member is entitled to credit for time spent in a fraudulent enlistment
which is not voided by the government.

19.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8),
effectively shortens that filing period, has determined that the 3 year
limit on filing to the ABCMR should commence on the date of final action by
the ADRB.  In complying with this decision, the Board has adopted the
broader policy of calculating the 3-year time limit from the date of
exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 should be
corrected by showing that his service was characterized as under honorable
conditions.

2.  The applicant's records do not contain all of his separation processing
documents.  In the absence of evidence to the contrary, it is presumed that
the applicant's separation was accomplished in compliance with applicable
regulation and without procedural errors that would jeopardize his rights.

3.  The applicant contends that his DD Form 214 does not reflect active
service credit.  However, in accordance with regulation, then in effect,
instances of fraudulent entry due to concealment of conviction by civil
court required commanders to void the fraudulent enlistment and release the
member from Army control.  Therefore, the applicant's enlistment was voided
and a DD Form 214 was issued which released him from the control of the
Army.  Since the applicant's enlistment was voided, he did not receive a
character of service.

4.  Evidence of record shows that the applicant was released from military
service under the provisions of chapter 14 of Army Regulation 635-200 by
reason of misconduct – fraudulent entry for concealment of civil
conviction.  In the absence of a record of satisfactory service, the
applicant is not entitled to a characterization of his service.

5.  The commander exercising general court-martial jurisdiction had the
authority either to retain the applicant, direct discharge of the applicant
or to void his enlistment.  The applicant has failed to show through the
evidence submitted with his application or the evidence of record that the
commander's actions to void his enlistment was not within his authority or
in accordance with laws and regulations then in effect or that his DD Form
214 was improperly prepared.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the Army Discharge Review
Board (ADRB) on 27 May 1993.  As a result, the time for the applicant to
file a request for correction of any error or injustice to this Board
expired on 26 May 1996.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show it would be in the interest of justice to excuse
failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JA___  __AMC__  __JPI___  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.




            ____Ann Campbell  _____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004102494                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2004/08/12                              |
|TYPE OF DISCHARGE       |UNCHAR                                  |
|DATE OF DISCHARGE       |1977/04/15                              |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |Fraudulent entry                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]