RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 June 2007
      DOCKET NUMBER:  AR20060017743


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that due to a mistake in his date of
birth on his draft card, he was discharged for fraudulent entry.

3.  The applicant provides no additional 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 15 May 1970, the date of his discharge.  The application
submitted in this case is dated 29 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's record shows that he was inducted into the Army and
entered active duty on 21 August 1969.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman), and private/E-2
(PV2) is the highest rank he attained while serving on active duty.

4.  The applicant's records shows that during his active duty tenure, he
earned the National Defense Service Medal (NDSM).  His record documents no
acts of valor, significant achievement, or service warranting special
recognition.

5.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment under the provisions of Article 15 of the Uniform Code
of Military Justice (UCMJ) on 1 December 1969, for being absent without
leave (AWOL) from 27 through 28 November 1969.  His punishment for this
offense was a forfeiture of 7 days of pay and 14 days of extra duty and
restriction.

6.  The unit commander notified the applicant that he intended to recommend
his discharge for fraudulent entry under the provisions of Army Regulation
635-206, and on 23 March 1970, the applicant consulted with legal counsel,
who advised the applicant of the basis for the contemplated separation
action for fraudulent entry and of its effects and his rights in connection
with the separation action.  Subsequent to receiving legal counsel, the
applicant completed an election of rights in which he waived his right to
personal appearance before and to have his case considered by a board of
officers.  He also waived his right to counsel and elected not to submit a
statement in his own behalf.

7.  On 7 April 1970, the unit commander submitted a separation packet on
the applicant and requested that the applicant be discharged for fraudulent
entry under the provisions of Army Regulation 635-206.  The unit commander
indicated his reason for taking the action was that the applicant was
pending court-martial for assault, carrying a concealed weapon, and being
drunk and disorderly.  The separation packet confirmed that while a
civilian, the applicant had been convicted of armed robbery, a felony, in
the Wayne County Court, Goldsboro, North Carolina, and had been sentenced
to confinement in a youth offender camp for one to five years.  It further
confirms that at the time of his induction, the applicant failed to
disclose his prior civilian conviction on the Statement of Law Violations
(USAREC Form 191-R) he completed and signed on 22 May 1969, during his
induction processing.

8.  On 12 May 1970, the separation authority approved the applicant's
separation for fraudulent entry under the provisions of Army Regulation 635-
206, and directed the applicant receive an UD.

9.  On 13 June 1980, the Army Discharge Review Board (ADRB), after careful
consideration of his entire record of service, denied the applicant's
petition to upgrade his discharge.  The ADRB indicated that the applicant's
record reflected that he did fraudulently enter the Army.  It also found
that the applicant had, since entering active duty, accepted one Article 15
and was pending a court-martial for a serious act of indiscipline.  The
ADRB also indicated that it could find no evidence in mitigation or
extenuation and determined that the applicant's discharge was proper and
equitable.

10.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.
11.  In complying with the decision outlined in the preceding paragraph,
the ABCMR has adopted the broader policy of calculating the 3-year time
limit from the date of exhaustion in any case where a lower level
administrative remedy is utilized.

12.  Army Regulation 635-206 in effect at the time, provided the policy for
separating enlisted members for fraudulent entry based on the concealment
of true citizenship, civil court conviction, youthful offenders, desertion,
and bars to reenlistment.  Youthful offenders with a sentence of more than
one year could be discharged for fraudulent entry.  An UD was the
appropriate discharge to issued for members separated under these
provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was separated for fraudulent entry
based on a mistake in his date of birth was carefully considered.  However,
the evidence of record confirms that while on active duty and pending a
court-martial for assault, carrying a concealed weapon, and being drunk and
disorderly, the applicant was processed for a fraudulent entry separation
based on his concealment of a youthful offender civil conviction for a
felony, which resulted in a confinement sentence of 1 or more years.

2.  The applicant's separation processing was accomplished in accordance
with the regulation in effect at the time.  All requirements of law and
regulation were met, and his rights were protected throughout the
separation process.  Further, given the applicant's record of misconduct
while serving on active duty, and absent any acts of valor, significant
achievement, or service warranting special recognition, his discharge
accurately reflects his overall record of undistinguished service.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 13 June 1980.  As
a result, the time for him to file a request for correction of any error or
injustice to this Board expired on 12 June 1983.  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

___MKP _  __RDG__  __RCH__  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.




                                  _____Margaret K. Patterson__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060017743                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/14                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/05/15                              |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |Fraudulent Entry                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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