RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 May 2007
      DOCKET NUMBER:  AR20060017312


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Donald L. Lewy                |     |Member               |
|     |Mr. Roland S. Venable             |     |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 that his discharge be “upgraded” to honorable or
that he be allowed to reenlist.

2.  The applicant states, in effect, that he was never told by his
recruiter that his juvenile record was an issue.  His recruiter knew about
his juvenile record, so he does not know how his enlistment was a
fraudulent entry.  Juvenile records are normally waived anyway, so he had
no need to lie.  He applied for a security clearance and then was told he
had to be released.

3.  The applicant also states clemency is warranted because it is an
injustice for him to continue to suffer the adverse consequences of a bad
discharge; there were other acts of merit; he has been a good citizen since
his discharge; his record of nonjudicial punishments indicated only
isolated or minor offenses; his ability to serve was impaired by his youth
and immaturity; his low aptitude scores and level of education impaired his
ability to serve; his ability to serve was impaired by his deprived
background; psychiatric problems impaired his ability to serve; there was a
waiver of moral standards when he enlisted (those pre-service problems
impaired his ability to serve); the punishment he got was too severe
compared with today’s standards; the punishment he got at discharge was too
harsh – it was much worse than most people got for the same offense; he
tried to serve and wanted to, but he just could not or was not able to; his
command abused its authority when it decided to discharge him and decided
to give him a bad discharge; he should have gotten a medical discharge
because he was not medically qualified to serve.

4.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 January 1982.  The application submitted in this case is
dated 18 November 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.  The applicant enlisted in the Regular Army on 24 July 1980.  His DD
Form 1966/5 (Record of Military Processing – Armed Forces of the United
States), item 36 (Involvement with Police or Judicial Authorities) states,
“Your answers to the following questions will be verified with the Federal
Bureau of Investigation (FBI) and other agencies to determine any previous
records of arrest or convictions or juvenile court adjudications.  If you
conceal such records at this time, you may, upon enlistment, be subject to
disciplinary action and/or discharge/separation from the military service
with other than an honorable discharge.”

4.  The applicant answered “yes” to two questions – that he had been
arrested, charged, cited (including traffic violations) or held by any law
enforcement or juvenile authorities  regardless of whether the citation or
charge was dropped or dismissed or he was found not guilty; and that he
had, as a result of being arrested, charged, cited, or held by law
enforcement or juvenile authorities, been convicted, fined, or forfeited
bond, or adjudicated a youthful offender or juvenile delinquent (regardless
of whether the record in his case had been “sealed,” expunged, or otherwise
stricken from the court record).

5.  In explaining his “yes” answers, the applicant indicated that he was
twice fined for running a stop sign.

6.  The applicant completed basic training and advanced individual training
and was awarded military occupational specialty 76C (Equipment Records and
Parts Specialist).

7.  The applicant’s discharge packet is not available.  He completed a
separation physical examination on 9 September 1981 and was found qualified
for separation.  He completed a mental status evaluation on 9 September
1981 and was found to have the mental capacity to understand and
participate in proceedings, to be mentally responsible, and to have met the
retention requirements of chapter 3, Army Regulation 40-501.

8.  On 6 January 1982, the applicant was released from the custody and
control of the Army, in pay grade E-3, under the provisions of Army
Regulation 635-200, chapter 14, for fraudulent entry.  His DD Form 214,
item 24 (Character of
Service) shows his character of service as “NA.”  Item 12 of his DD Form
    214 shows he had no credit for service.  He was given a reenlistment
(RE) code of 3.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  At the time, chapter 14 established
policy and prescribed procedures for processing a Soldier for separation
due to misconduct by reason of fraudulent entry into the service.  It
stated a member who concealed his adjudication as a juvenile offender for a
felonious offense normally would not be considered for retention.  It also
stated the evidence must clearly have shown that the member gave a negative
answer to a specific question as to whether he had a record of being a
juvenile offender; or denied that civil custody, as a result of such
record, existed at time of entry into the Service.  Voidance was mandatory
in all cases involving verified recruiter connivance.  The purpose was to
preserve the value of honorable service and to preclude unmerited award of
honorable discharges to individuals who, in many cases, would not have been
in the Army had their disqualifications been known at enlistment.

10.  Pertinent Army regulations provide that prior to discharge or release
from active duty individuals will be assigned RE codes based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies and procedures for enlistment and
processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3
of that regulation prescribes basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.

11.  RE code 3 applies to persons not qualified for continued Army service,
but the disqualification is waivable.

12.  Recruiting personnel have the responsibility for initially determining
whether an individual meets current enlistment criteria.  They are required
to process a request for waiver under the provisions of chapter 4, Army
Regulation 601-210.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s discharge packet is not available.  However, he
acknowledges that he had a juvenile record (he does not state what the
offense was).  His DD Form 1966/5 verifies that he informed the Army only
of two offenses (of running a stop sign).  Presumably, his juvenile record
pertained to some offense other than running a stop sign.

2.  Moreover, no matter what his recruiter may have told him, the DD Form
1966/5 informed the applicant that concealing a juvenile record at the time
of his enlistment could subject him to discharge with an other than
honorable discharge.  The applicant nevertheless failed to disclose his
juvenile record on the DD Form 1966/5.

3.  In the absence of evidence to the contrary, it is presumed that the
applicant's administrative separation was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights and that his service was properly voided
(with no characterization of service given) in accordance with regulatory
guidance in effect at the time.

4.  Since the applicant was given an RE code of 3 when he separated he was
disqualified from reenlistment; however, the disqualification is waivable.
Recruiting officials are required to process a request for a waiver.  In
view of some of the applicant’s contentions (e.g., that psychiatric
problems impaired his ability to serve, although not indicated in his
September 1981 mental status evaluation), this Board will not arbitrarily
override any considered determination by the appropriate recruiting
officials regarding the applicant’s current qualifications for enlistment.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 January 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on           5 January 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

__wfc___  __dll___  __rsv___  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.




                                  __William F. Crain____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060017312                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070531                                |
|TYPE OF DISCHARGE       |UNCHAR                                  |
|DATE OF DISCHARGE       |19820106                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |A62.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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