RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  9 August 2007
	DOCKET NUMBER:  AR20070004524 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Ms. Rea M. Nuppenau

Member

Mr. Dennis J. Phillips

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 be changed to general under medical reasons. 

2.  The applicant states, in effect, that when he informed his recruiter that he had a juvenile record, he was told not to say anything.  He shipped out for basic training where he injured his ankles and was forced to continue mandatory training.  The applicant contends that he was not permitted to see the doctor.  He was recycled and kept as a holdover for 3 months without receiving any pay.  He went AWOL (absent without leave) for about 56 days and then surrendered himself.  He was discharged with $123.00 for bus fare in lieu of the money he earned.  He is not interested in the money.  He was injured in training and will never be able to walk without pain again. 

3.  The applicant provides no additional documentation. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 9 November 1979, the date of his release from custody and control of the Army.  The application submitted in this case is dated 4 March 2007.

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 16 December 1978, the applicant enlisted in the Regular Army for 3 years. He completed his initial training and was awarded military occupational specialty 11B1O (Infantryman).

4.  On 3 March 1979, the applicant was given medical treatment for a sprained left ankle that had occurred three weeks earlier.  He was given a heating pad and directed to continue elevating the injury.


5.  On 30 April 1979, the applicant was notified that he was being considered for separation from the United States Army because of fraudulent entry.  He had concealed his conviction by civil court.  The applicant was advised of his rights.  He acknowledged that his military status was invalid because it was based on an enlistment which was improper.  He further indicated his desire to remain on active duty in order to complete the period of service which he would have been required to serve if the defect had not occurred.  He requested a waiver of this defect.

6.  On 30 April 1979, the applicant’s company commander recommended that he be retained in the service.  The applicant’s battalion commander supported this recommendation based on the applicant’s completion of his initial training and strong desire to remain in the service.  According to the applicant, he fraudulently enlisted in the service by following the instructions of his recruiter.  The battalion commander indicated that an investigation into recruiter connivance was initiated.

7.  On 13 June 1979, the brigade commander interviewed the applicant and recommended that he be retained in the service.

8.  On 7 July 1979, the applicant went AWOL.  He surrendered himself to civilian authorities on 1 September 1979 and was subsequently returned to Fort Benning, Georgia.

9.  On 6 September 1979, a medical examination found him to be qualified for separation with a physical profile of 111111.  The applicant indicated that he was in good health.  There were no physical defects noted on his examination report.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

10.  On 14 September 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for AWOL from 7 July to on or about 1 September 1979.  The punishment included a forfeiture of $50.00 pay per month for 1 month, and 7 days restriction and extra duty (suspended).

11.  On 19 October 1979, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Section II, Chapter 14, for fraudulent entry.  

12.  The applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf.

13.  On 5 November 1979, the Acting commander, United States Army Field Artillery Center, Fort Sill, Oklahoma, directed that orders be issued to void the applicant’s enlistment under the provisions of Chapter 14, Army Regulation 
635-200 based on his concealed civil conviction.

14.  Accordingly, on 9 November 1979, the applicant was released from the custody and control of the United States Army by reason of misconduct-fraudulent entry. His service was not characterized.  He had completed no creditable service. 
 
15.  On 27 January 1996, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Section II, Chapter 14 established policy and prescribed procedures for separating members for misconduct due to fraudulent entry.  It provided that a member who concealed his adjudication as a juvenile offender for a felonious offense normally would not be considered for retention.   Where court-martial charges are not pending or contemplated, commanders exercising general court-martial jurisdiction will void the fraudulent entry by issuing orders releasing the member from Army control for fraudulent entry in all cases involving alleged or verified connivance by recruiting officials.

17.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, 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.





DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s contention that he suffered a debilitating ankle injury is not supported by the evidence of record.  

4.  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.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 27 January 1996.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 26 January 1999.  However, 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

_ REN __  __JCR __  __DJP __  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.




__   Jeffrey C. Redmann_____
          CHAIRPERSON




INDEX

CASE ID
AR20070004524
SUFFIX

RECON
 
DATE BOARDED
 
TYPE OF DISCHARGE

DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR 635-200, Section II, CH 14 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.6200
2.

3.

4.

5.

6.