RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 July 2006
      DOCKET NUMBER:  AR20050014135


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Jeanette McCants              |     |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, correction of item 12c (Net Active
Service This Period), of his DD Form 214 (Certificate of Release or
Discharge from Active Duty) to show his time served from 3 November 1981 to
11 August 1982 and correction of his records to show that he was not paid
for this period of service.

2.  The applicant states, in effect, that he was discharged from Fort Lee,
Virginia, without pay on 11 August 1982 and that item 12c, of his DD Form
214, did not show his time served on active duty (AD) from 3 November 1981
to 11 August 1982.

3.  The applicant provides a copy of his DD Form 214 in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 August 1982, the date of his discharge.  The
application submitted in this case is dated 28 August 2005 but was received
on 28 September 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's military records show he entered AD on 21 November
1973, as a unit supply specialist (76Y).  He continued to serve until he
was honorably discharged on 14 December 1973 under the provisions of Army
Regulation    635-200, chapter 5, for failure to meet medical fitness
standards at the time of his enlistment.  He had a total of 24 days of
creditable service.

4.  After a break in service, the applicant reenlisted on 12 December 1977,
as a unit supply specialist (76Y).



5.  On 6 February 1978, the applicant's commander initiated action to
eliminate him from the service under the provisions of Army Regulation 635-
200, chapter 14, paragraph 14-5a, for fraudulent entry due to concealment
of his prior service.  He based his reason on the applicant's previous
discharge from the US Army and non-submission of a waiver for reentry.
After consulting with counsel, the applicant waived his rights and elected
not to submit a statement in his own behalf.

6.  On 1 March 1978, the separation authority approved the recommendation
for the applicant's discharge and directed the issuance of an honorable
discharge.  The applicant was discharged on 3 March 1978.  He was credited
with 2 months and 16 days of creditable service.

7.  After another break in service, the applicant enlisted in the US Army
Reserve (USAR) on 15 August 1981.  He entered active duty (AD) on
3 November 1981, as a unit supply specialist (76Y).  He attended advanced
individual training (AIT) at Fort Lee.

8.  On 23 July 1982, while assigned at Fort Lee, the applicant's commander
initiated action to eliminate him from the service under the provisions of
Army Regulation 635-200, chapter 14, paragraph 14-5a, for fraudulent entry
due to concealment of his prior service.  After consulting with counsel,
the applicant waived his rights and elected to submit a statement in his
own behalf and desired to remain on AD.  However, his statement is
unavailable for review.

9.  On that same day, the commander submitted his recommendation to
separate the applicant under the provisions of Army Regulation 635-200,
chapter 14, paragraph 14-5a, for misconduct-fraudulent entry, due to his
concealment of his prior service.

10.  On 29 July 1982, the applicant's case was reviewed by the Staff Judge
Advocate (SJA).  He found the proceedings to be legally sufficient to
support separation.  The SJA stated that at the time the applicant made
application for his current enlistment, he stated he had no prior military
service.  By stating he had no prior service, he concealed the facts that
he had previously served in the Army and had been administratively
separated twice.  His failure to disclose his prior service constituted
fraudulent entry.  The SJA indicated the separation authority’s options
were:  (a) void the fraudulent entry; (b) approve separation and direct
issuance of an honorable or general discharge certificate; (c) convene a
board of officer to consider the case; or (d) forward the case to the
general court-martial convening authority with the recommendation the
servicemember be discharged under other than honorable conditions.
11.  On 10 August 1982, the separation authority approved the
recommendation for the applicant's discharge and indicated that period of
service would be immediately voided due to his fraudulent enlistment
involving concealment of his prior service.

12.  The applicant was discharged on 11 August 1982.  He had completed
9 months and 9 days of AD service which was considered null and void.

13.  Item 12c (Net Active Service This Period), of his DD Form 214, shows
the entry "00 00 00", item 24 (Character of Service), shows the entry "NA"
(not applicable), and item 28 (Narrative Reason for Separation), of his DD
Form 214 shows the entry "VOIDANCE."

14.  Item 18 (Remarks), of his DD Form 214, shows the entry "TIME SERVED IS
NOT CREDITABLE FOR PROMOTION OR LONGEVITY."

15.  The applicant's final pay voucher is unavailable for review.

16.  Army Regulation 635-200, in effect at that time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 14 established
policy and prescribed procedures for processing fraudulent entry cases and
provided for the administrative disposition of enlisted personnel for
misconduct by reason of fraudulent entry into the service.  Paragraph 14-5
pertained to incident of fraudulent entry.  It stated that fraudulent entry
was the procurement of an enlistment, induction, or period of active
service through any deliberate material misrepresentation, omission, or
concealment which, if known might have resulted in rejection.  Any incident
which met the foregoing could be cause for discharge for fraudulent entry.
All service performed under a fraudulent enlistment was considered null and
void.

17.  Subparagraph 14-5a states, in pertinent part, that concealment of
prior service was cause for separation for fraudulent entry.

18.  Army Regulation 635-5 governs the preparation of the DD Form 214.  It
states, in pertinent part, that item 12c will be completed to show the
amount of service, computed by subtracting item 12a (Date Entered AD This
Period) from 12b (Separation Date This Period), less lost time, if any.





19.  Army Regulation 37-104-3, in effect at that time, covered military pay
and allowance procedures for JUMPS-Army (Joint Uniform Military Pay
System).  Chapter 4 pertained to fraudulent enlistment.  Paragraph 10402
stated that a Soldier under investigation for a fraudulent enlistment could
continue to be paid until a determination of fraud was made: however, the
Soldier was in a non-promotable status until such a determination was made.
 Consequently, upon receipt of notice that the Soldier was serving under a
fraudulent enlistment, the PFR (Personnel Financial Record) would be
flagged to prevent improper pay actions during the period of investigation.

20.  Paragraph 10403, of the same regulation, states that when a
determination has been made that a Soldier was serving under a fraudulent
enlistment but the Government has neither voided the enlistment or waived
the fraud or the enlistment was voided, an entry would be inputted to the
MMPF (Master Military Pay File) to remove the account.  All payments would
be suspended and the PFR would be kept and manually maintained pending
notice of determination that the Soldier would either be separated or the
fraud waived and the Soldier allowed to remain on AD.

21.  Paragraph 10405, of the same regulation, states that upon receipt of
an order sentencing the Soldier to a dishonorable discharge or discharge
for reason of fraud, the FAO (Finance and Accounting Officer) would close
out the Soldier's pay account.  On the basis that Soldiers were not
entitled to pay and allowances after a determination of fraud or minority
was made and no further payments were authorized, the Soldier was no longer
subject to taxable income.

22.  Title 31, U. S. Code, section 3702, also known as the barring statute,
prohibits the payment of a claim against the Government unless the claim
has been received by the Comptroller General within 6 years after the claim
accrues. Among the important public policy considerations behind statutes
of limitations, including the 6-year limitation for filing claims contained
in this section of Title 31, U. S. Code, is relieving the government of the
need to retain, access, and review
old records for the purpose of settling stale claims, which are often
difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's first period of service
from 21 November to 14 December 1973 was honorable.  He reentered AD, after
a break in service, on 12 December 1977 and was honorably discharged on
3 March 1978 under the provisions of Army Regulation 635-200, chapter 14,
paragraph 14-5a, for fraudulent entry due to concealment of his prior
service.
2.  The applicant again reentered AD, on 3 November 1981 and stated that he
had no prior service.  He concealed the facts that he had previously served
in the Army, and had been administratively separated twice.  His failure to
disclose his prior service constituted fraudulent entry.  He was discharged
on 11 August 1982 under the same provision of his last discharge.  He had
completed 9 months and 9 days of AD service which was voided.  Therefore,
he is not entitled to correction of item 12c, of his DD Form 214, dated
11 August 1982, to show his time served from 3 November 1981 to 11 August
1982.

3.  The applicant contends that he was not paid for his last period of
service; however, according to regulatory authority it was determined that
he was serving under a fraudulent enlistment and was discharged for reason
of fraud for concealing his prior service and he was not entitled to pay
and allowances after a determination was made of fraud when he last entered
AD.  His service was voided and no further payments were authorized for his
last period of service.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 August 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 10 August 1985.  The applicant 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

__JS____  _cd_____  _JM_____  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.




                                  ____    John Slone______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014135                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060711                                |
|TYPE OF DISCHARGE       |NA                                      |
|DATE OF DISCHARGE       |19820811                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 14-5a               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100/128                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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