RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           30 August 2005
      DOCKET NUMBER:  AR20050000062


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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, that the narrative reason for his
separation be changed from fraudulent entry to entry level status (ELS).

2.  The applicant states, in effect, that he has been advised that under
current regulations, the narrative reason for separation of members
separated for fraudulent entry while in an ELS is listed as “Entry Level
Separation”.  He claims that when he joined the Army, he listened to the
advice of his recruiter, who told him not to provide his juvenile
information, which resulted in his fraudulent entry separation.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 March 1985.  The application submitted in this case is
dated
20 December 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 limitations 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 he enlisted in the Regular Army and
entered active duty on 6 December 1984.

4.  On 6 February 1985, while the applicant was still in training, his unit
commander notified him that his separation under the provisions of chapter
7, Army Regulation 635-200, by reason of fraudulent entry, was being
contemplated.  The unit commander also informed the applicant that his
service would be categorized as “Uncharacterized” because he was in an ELS.


5.  On 11 February 1985, the applicant consulted with legal counsel and was
advised of the basis for his contemplated action to separate him for
fraudulent entry.  He was further advised of the effects of the discharge
and of the rights available to him.

6.  On 27 February 1985, the separation authority approved the applicant’s
discharge due to his concealment of civil convictions under the provisions
of paragraph 7-17, Army Regulation 635-200 and directed the applicant’s
entry level separation.  On 1 March 1985, the applicant was discharged
accordingly.

7.  The separation document (DD Form 149) issued to the applicant on the
date of his separation confirms he completed a total of 2 months and 26
days of active military service.  It also shows that the narrative reason
for his separation was fraudulent entry and that his service was described
as “Uncharacterized” based on his ELS.

8.  Army Regulation 635-200 sets forth the policies and procedures for
enlisted separations from the Army.  Chapter 3 contains guidance on
characterization of service.  Paragraph 3-9 contains guidance on
Uncharacterized Separations.  It states, in pertinent part, that Soldiers
who are separated in an ELS will receive an “Uncharacterized” description
of service.  The regulation stipulates that Soldiers are in an ELS for the
first 180 days of continuous active duty.

9.  Chapter 7 of the enlisted separations regulation provides the
authority, criteria, and procedures for the separation of Soldiers because
of minority, erroneous enlistment, re-enlistment or extension of
enlistment, defective enlistment agreement, or fraudulent entry.

10.  Paragraph 7-17 of the enlisted separations regulation contains
guidance on separation for fraudulent entry.  It states that fraudulent
entry is the procurement of an enlistment, re-enlistment, 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 re-enlistment, might have resulted in rejection.
This includes all disqualifying information requiring a waiver.

11.  Paragraph 7-23 of the enlisted separations regulation contains
guidance on the type of discharge issued to Soldiers separated for
fraudulent entry.  It states, in pertinent part, that the service of a
Soldier discharged under the provisions of this chapter will be described
as “Uncharacterized” if in an ELS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the narrative reason for his separation
should be listed as entry level separation was carefully considered.
However, by regulation, although all Soldiers separated under fraudulent
entry provisions of the regulation who are in an ELS, the first 181 days of
active duty service, receive an “Uncharacterized” description of service,
the narrative reason for separation is based on the authority for
discharge.

2.  In this case, the authority and reason for separation entered on the
applicant’s
DD Form 214 accurately reflects that he was separated under fraudulent
entry provisions of the regulation, and his service was described as
“Uncharacterized” in recognition of his ELS.  Therefore, there appears to
be no error or injustice related to the narrative reason for the
applicant’s separation.

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 1 March 1985.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
28 February 1988.  However, he failed to 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

___PMS_  ___YM __  __ LGH__  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.




            ____Paul M. Smith________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000062                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/30                              |
|TYPE OF DISCHARGE       |UNCHAR                                  |
|DATE OF DISCHARGE       |1985/03/01                              |
|DISCHARGE AUTHORITY     |AR 635-200 C7                           |
|DISCHARGE REASON        |Fraudulent Entry - ELS                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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