RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 September 2007
	DOCKET NUMBER:  AR20070004230 


	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

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Frank C. Jones, II

Member

Ms. Carmen Duncan

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, that his discharge should be corrected to show he was honorably discharged and entitled to Veterans Benefits. 

2.  The applicant states, in effect, that he was told at the Arvada Recruiting Station by the recruiter that his prior police arrest record would be waived and placed "none" in the arrest section of his enlistment contract.  The applicant alleges that he trusted the Arvada Recruiters and had no indication of any foul play.  The applicant continues that he served on active duty during the period 27 November 1979 through 6 January 1981.  The applicant concludes that he needs to get help from the Department of Veterans Affairs to buy a house and educational training for employment.

3.  The applicant has not provided any additional documentary evidence in support of this case.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military record shows that he enlisted in the Regular Army and entered active duty on 27 November 1979.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman).  The highest rank he attained while serving on active duty was private/pay grade E-2.  

3.  The applicant's record shows he was awarded the Parachutist Badge and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16 Rifle).

4.  Department of The Army Headquarters, 9th Infantry Division, Fort Lewis, Washington Orders 246-770, dated 11 November 1980, shows the applicant was reassigned to Fort Lewis for separation, effective 17 December 1980. 
5.  Department of The Army Headquarters, 9th Infantry Division, Fort Lewis, Washington Orders 256-773, dated 24 December 1980, amended his previous order to show that he would report to Fort Lewis on 30 December 1980 to be separated on 6 January 1981. 

6.  Although the facts and circumstances surrounding the applicant's discharge are not available for review with this case, he states in his application he was told a waiver would be put in for his prior arrest record.

7.  The applicant's DD Form 4/3 (Enlistment/Reenlistment Document Contract) paragraph 14, Section D (Certification and Acceptance) states "My acceptance for enlistment is based on the information I have given in my application for enlistment.  If any of that information is false or incorrect, this enlistment may be voided or terminated administratively by the Government or I may be tried by a Federal, civilian or military court and, if found guilty, may be punished."  This section further shows the applicant acknowledged that he fully understood only those agreements in section B of this document or those recorded on the attached annex(es) would be honored.  The applicant placed his initials below this statement and annotated “NONE” to show no other promises were made to him. 

8.  The applicant's DD Form 1966/5 (Enlistment Contract), section 36 (Involvement with Police or Judicial Authorities) shows the applicant initialed "none" to show he had no prior offenses.

9.  Records show that, on 6 January 1981, the applicant was separated under the provisions of chapter 14-4b(3), Army Regulation 635-200 (Personnel Separations) and was released from custody and control of the Army by reason of misconduct-fraudulent entry.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) also shows in item 24 (Character of Service) the entry "NA."  The applicant's DD Form 214 issued at the time, confirms he held the rank of private/pay grade E-2 and completed a total of 0 years, 0 months, and 0 days of active military service.  

10.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct fraudulent enlistment/reenlistment, conviction by civil court, AWOL, desertion and other acts or patterns of misconduct.  




11.  Paragraph 14-4(a) (Incident of fraudulent entry) of the regulation provided, in pertinent part, that fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all conditions that would have been disqualifying with out a waiver.  However, the enlistment of a minor with false representation as to age without proper consent will not in itself be considered as fraudulent enlistment.  Two tests must be applied in each case of suspected fraudulent enlistment or reenlistment to establish that the enlistment or reenlistment was, in fact, fraudulent.  (1)  First test.  Commanders will determine if the information is in fact disqualifying.  (2)  Second test.  Commanders must verify the existence and true nature of the apparently disqualifying information.  

12.  Paragraph 14-4(b) of the regulation provided, in pertinent part, that any incident which meets the foregoing two tests may be cause for separation for fraudulent entry (concealment of prior service, concealment of true citizenship status, concealment of conviction by civil court, concealment of record as a juvenile offender, concealment of medical defects, concealment of absence without leave or desertion from prior service and concealment of other disqualifications).

13.  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 (emphasis added), 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.

14.  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 that he was told by the Arvada Recruiter that his prior police arrest record would be waived and to place "none" in the arrest section of his enlistment contract.  

2.  The applicant's record shows that he concealed his prior arrest record at the time of his enlistment.

3.  The applicant's record shows he authenticated his enlistment contract to be correct and true, and that he acknowledged he understood if any information was falsified or incorrect, he could be tried in a civilian or military court and his enlistment could be voided or terminated administratively by the Government.

4.  The applicant provided no evidence that a recruiter encouraged him to falsify his enlistment documents.

5.  Additionally, the applicant’s enlistment contract shows he agreed that there were no other promises or guarantees made to him by anyone when he wrote the entry "none" as shown by his initials.

6.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

7.  The applicant's contentions do not demonstrate error or injustice in the narrative reason for discharge directed by the Army.  

8.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

9.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for Veteran's Benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LDS____  _FCJ____  _CD ___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.





__Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20070004230
SUFFIX

RECON
YYYYMMDD
DATE BOARDED

TYPE OF DISCHARGE
UNCHAR
DATE OF DISCHARGE
1981/01/06
DISCHARGE AUTHORITY
AR 635-200 CH 14-4b(3)
DISCHARGE REASON
Misconduct-Fraudulent entry
BOARD DECISION
DENY
REVIEW AUTHORITY
Director
ISSUES         1.

2.

3.

4.

5.

6.