RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 December 2005
      DOCKET NUMBER:  AR20050006352


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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, an upgrade of his under honorable conditions
discharge.

2.  The applicant states, in effect, that he served proudly in the Army and
he needs his VA benefits.

3.  The applicant provides a copy of his Armed Forces of the United States
Report of Transfer or Discharge (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 June 1964.  The application submitted in this case is
dated
18 April 2005.

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 enlisted in the Regular Army on 16 July 1963 for a period
of
3 years.  At the time of his enlistment, the applicant signed a DD Form 4,
stating that he had one dependent, his wife.  He was trained in and awarded
military occupational specialty 550.00 (Supply Handler).  The highest grade
he attained was pay grade E-2.

4.  On 14 January 1964, the applicant’s wife personally appeared before a
Judge, in Parker, County, Texas; and through sworn testimony, stated that
the $95.20 per month, which she was receiving from her husband, was not
enough money to support her and her three children.  She stated that she
was not eligible to receive financial assistance from any state or federal
agency because of the income that she was receiving from the applicant’s
military enlistment pay and that the applicant’s discharge from the Army
was the only remedy to her hardship.

5.  On an undetermined date, a letter was sent to the applicant’s
commander, informing him of the incident.  On 22 May 1964, the applicant
was notified by the commander that he was being recommended for discharge
under the provisions of Army Regulation 635-206, for fraudulent enlistment,
and that since an undesirable discharge may be issued, the commander
informed him of his rights and privileges under law.

6.  On the same day, the applicant acknowledged receipt of the
correspondence that advised him of the basis for the contemplated
separation action and of his right to be represented by counsel at a
hearing.  He waived his right to have his case considered by a board of
officers.  The commander noted that the applicant’s conduct was excellent
and his efficiency was good during his
10-month enlistment period.

7.  The applicant submitted a statement in his behalf.  He stated in
effect, concerning his fraudulent entry into the Army, that while being
interviewed by a recruiter, he explained to the recruiter that he had a
wife and three stepchildren who were dependent on him for support, it was
overlooked and he was sworn into the U.S. Army.  He states that he
erroneously signed a form claiming only his wife as a dependent.  Since
being married on 21 May 1962, he has supported his wife and stepchildren.

8.  The facts and circumstances pertaining to the applicant’s discharge
processing are not available for review.  However, the evidence does
include a properly constituted DD Form 214 that shows on 16 June 1964, the
applicant was separated under the provisions of Section II, Army Regulation
635-206, separation program number 280, by reason of fraudulent entry.  The
separation document (DD Form 214) he was issued shows in block 24a
(Statement Of Service), 0 years, 0 months and 0 days of creditable active
military service.  (Creditable service for a period that is fraudulent
entry is not authorized).  The applicant authenticated this document with
his signature indicating he was discharged under the provisions of Army
Regulation 635-206.

9.  There is no indication that the applicant applied to the Army Discharge
Review Board of an upgrade of his discharge within its 15-year statute of
limitations.

10.  Army Regulation 635-206, in effect at the time, sets forth the basic
authority for the separation of enlisted personnel.  Section II 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.  Section II
also provides that time spent in an enlistment, which is determined to be
fraudulent and is specifically terminated by reason of fraud is not
creditable service and the Soldier normally will not be considered for
retention.  Soldiers separated under this chapter maybe awarded an
honorable discharge, a general discharge, or a discharge under other than
honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant were carefully considered and found to
have insufficient merit in this case.

2.  The applicant’s DD Form 214 accurately reflects no active duty service
credit based upon the fraudulent entry due to deliberate material
misrepresentation, omission, or concealment of information.  The commander
will void the fraudulent enlistment and release the Soldier from Army
control.

3.  The available evidence is void of a discharge packet containing the
facts and circumstances concerning the events that led to the applicant’s
discharge.  However, there is a properly constituted DD Form 214 on file.
This document identifies the reason and characterization of the discharge.
The applicant authenticated this document with his signature.  Therefore,
Government regularity in the discharge process is presumed.

4.  In the absence of any evidence of record or independent evidence to the
contrary, it is concluded that all requirements of law and regulation were
met and the rights of the applicant were fully protected throughout the
separation process. Further, the applicant’s discharge accurately reflects
his overall record of service.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 February 1965.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 22 February 1968.  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

__TSK __  __RLD __  __JBM __  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.




                                  ____ Ted S. Kanamine_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006352                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051222                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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