RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060010862 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Curtis Greenway

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward E. Montgomery

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, upgrade of his under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that he received a letter of apology from the military in November 1978 because he was wrongfully accused and separated from the Army.  The applicant also states, in effect, at that time he was offered the opportunity to reenter any branch of the U.S. Armed Forces; however, he was young and angry and did not accept the offer.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), with an effective date of 8 August 1978, and DD Form 257A (General Discharge Certificate), dated 8 August 1978.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 8 August 1978, the date of his discharge from the Army.  The application submitted in this case is dated 21 July 2006.

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.  On 1 February 1978, the applicant completed a DD Form 1966 (Application for Enlistment - Armed Forces of the United States).  This document shows in Item 37 (Character and Social Adjustment), section c (Have you ever been involved in the use, purchase, possession or sale of marijuana, LSD, or any harmful or habit-forming drugs and/or chemicals except as prescribed by a licensed physician?), that the applicant placed an "X" in the "No" column.  Item
40 (Involvement with Police or Judicial Authorities), section a (Have you ever been arrested, charged, cited, or held by Federal, State, or other law enforcement or juvenile authorities regardless of whether the citation or charge was dropped or dismissed or you were found not guilty?), shows that the applicant placed an "X" in the "Yes" column.  Item 40, section b (As a result of being arrested, charged, cited, or held by law enforcement or juvenile authorities, have you ever been convicted, fined by or forfeited bond to a Federal, State, or other judicial authority or adjudicated a youthful offender or juvenile delinquent (regardless of whether the record in your case has been "sealed" or otherwise stricken from the court record)?), the applicant placed an "X" in the "Yes" column. Item 40, section g (Explain below "Yes" answers in "a" through "e."  Be careful to include all incidents with law enforcement authorities that you discussed with your recruiter.), the applicant entered two incidents; one for disorderly conduct on 18 July 1975 and another for battery in February 1975.  Item 41 (Remarks) of the form contains the statement "I have no other law violations other than the ones stated above" and shows that the applicant placed his signature immediately after this statement.

4.  The DD Form 1966, Section V (Certification), Item 42, contains the following statement, "By Applicant:  I understand that the Armed Forces representative who will accept my enlistment does so in reliance on the information provided by me in this document; that if any of the information is knowingly false or incorrect, I may be prosecuted under Federal civilian or military law or subject to administrative separation proceedings and, in either instance, I may receive a less than honorable discharge which could affect my future employment opportunities.  I certify that the information given by me in this document is true, compete, and correct to the best of my knowledge and belief."  The DD Form 1966 also shows the applicant placed his signature in Section V (Certification), Item 42 c (Signature of Applicant) of the form.

5.  The applicant enlisted in the U.S. Army Reserve for a period of 6 years on
10 February 1978 and entered active duty in the Regular Army for a period of
3 years on 7 March 1978.

6.  The applicant's military service records contain a copy of an undated Local Agency Check of the Chicago Police Department pertaining to the applicant.  This document shows, in pertinent part, that he was arrested on 28 July 1976 for aggravated battery, failed to appear in court, and a warrant was issued for his rearrest.  This document also shows that the applicant was arrested on
22 September 1976 for possession of marijuana, failed to appear in court, and a warrant was issued.  This document further shows that the applicant was arrested on 6 November 1976 for driving on a sidewalk, failure to carry or produce a license, suspended license, and a theft warrant; all charges were heard at traffic court; information concerning the theft warrant and disposition of the charge met with negative results; however court personnel advised that the warrant was probably handled in traffic court, along with the traffic violations.

7.  The applicant's military service records contain a U.S. Department of Justice, Federal Bureau of Investigation, Identification Division, Washington, DC, document, dated 2 April 1978, that shows, in pertinent part, the applicant was charged with theft on 6 November 1976 and a warrant for his arrest was issued.

8.  The applicant’s military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 7 July 1978.  This document shows that non-judicial punishment was imposed against the applicant for, on or about 30 June 1978, failing to go at the prescribed time to his appointed place of duty.  His punishment consisted of forfeiture of $92.00, 14 days extra duty, and 14 days restriction to the company area.

9.  The applicant was notified of his commander's intent to recommend him for elimination from the service based on fraudulent entry.  On 6 July 1978, the applicant acknowledged he was advised of the basis for the commander's contemplated action to recommend his separation under the provisions of Army Regulation 635-200 for fraudulent enlistment and its effects; of the rights available to him; and that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued.

10.  On 7 July 1978, the applicant submitted a statement in his behalf.  He stated in effect, that at the time he was trying to enter the armed forces, he told his recruiter that he had been arrested for a crime, but never convicted.  The recruiter advised him to answer "No" to the question on the form since he had not been convicted, and the applicant did as instructed.  The applicant also stated he knew what he did was wrong, requested a waiver to stay in the Army and, in effect, indicated his desire to stay in the Army.

11.  On 11 July 1978, the unit commander recommended the applicant's elimination from the service because of fraudulent entry.  On 12 July 1978, the battalion commander recommended approval of the applicant's discharge and forwarded the action to the brigade commander.  On 18 July 1978, the brigade commander recommended the applicant be eliminated from the service and forwarded the action to the separation authority.

12.  On 19 July 1978, the applicant submitted a signed statement, witnessed by the applicant's unit commander, which stated, "I [Applicant's Rank and Name] do not want to stay in the Army."

13.  On 1 August 1978, the brigadier general serving as commander, U.S. Army Signal Center and Fort Gordon, Fort Gordon, Georgia, approved the applicant's discharge under the provisions of Army Regulation 625-200, Chapter 14, Section II, for fraudulent entry and directed the applicant be furnished a DD Form 257A (General Discharge Certificate).

14.  The DD Form 214 issued to the applicant on the date of his separation confirms that the applicant was issued a discharge under honorable conditions.  This document also confirms that the authority for the applicant’s separation was Army Regulation 635-200, Chapter 14, Section II, and the applicant authenticated this document with his signature indicating he was discharged under honorable conditions.

15.  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.  

16.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of that regulation provided, in pertinent part, that a fraudulent entry is the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known, might have resulted in rejection.  Soldiers separated under this chapter may be awarded an honorable discharge, a general discharge, or a discharge under other than honorable conditions.  

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

18.  Army Regulation 635-200, paragraph 3-7b, 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under honorable conditions discharge should be upgraded to an honorable discharge because he was wrongfully accused and separated from the Army.  He also contends, in effect, shortly after his discharge he was offered the opportunity to reenter the U.S. Armed Forces, but he did not accept the offer at the time.  However, the applicant provides insufficient evidence in support of his claim.

2.  The evidence of record shows that the Application for Enlistment in the Armed Forces of the United States (DD Form 1966) instructed the applicant to be careful to include all incidents with law enforcement authorities that he discussed with his recruiter and that the Armed Forces representative who will accept his enlistment does so in reliance on the information provided by him in the document.  In addition, the evidence of record shows that the applicant certified that the information given in the DD Form 1966 was true, compete, and correct to the best of his knowledge and belief. 

3.  The evidence of record shows that the applicant indicated on his application for enlistment that he was arrested on 2 occasions.  The evidence of record also shows that the applicant was arrested on at least 3 other occasions that he did not list on the DD Form 1966.  In addition, one of these arrests involved the possession of marijuana; however, the applicant indicated on the DD Form 1966 that he had never been involved in the use, purchase, possession or sale of marijuana.

4.  There is no evidence in the applicant's military service records, and the applicant offers no official documentary evidence, that shows he was offered an apology from the military indicating he was wrongfully separated from the Army.

5.  In view of the all of the foregoing, the evidence fails to support the applicant's contention that he was wrongfully accused and separated from the Army.

6.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

7.  The evidence of record shows that the applicant served on active duty a total of 5 months and 2 days.  During his period of military service it was discovered that the applicant concealed information concerning his civilian arrest record and falsely responded to a question relating to his character and social adjustment when he denied ever being in possession of marijuana.  In addition, the applicant received non-judicial punishment for failing to go at the prescribed time to his appointed place of duty.  The evidence of record clearly shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, he is not entitled to an honorable discharge.

8.  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.

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 August 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
7 August 1981.  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

___CG___  ___MJF_  ___EEM _  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.




     __Curtis Greenway____
          CHAIRPERSON




INDEX

CASE ID
AR20060010862
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/12
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19780808
DISCHARGE AUTHORITY
AR 635-200, Chapter 14, Section II
DISCHARGE REASON
Fraudulent Entry
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.