RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070011587 


	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. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 her general discharge under honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that she did not tell anyone about her son prior to entering the United States Army.

3.  The applicant provided no additional documentation.

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.  On 12 August 1986, the applicant enlisted in the Regular Army for 3 years.  She completed her initial training and was awarded military occupational specialty 94B1O (Cook).

3.  On 26 December 1986, the applicant was assigned for duty as a cook with the 329th Transportation Company, Fort Eustis, Virginia.

4.  On 26 May 1987, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to be at her appointed place of duty and for disrespect to a noncommissioned officer.  The punishment included 14 days restriction and extra duty.  The applicant’s appeal of the punishment was denied.

5.  On 28 May 1987, the applicant was counseled regarding a speeding ticket on Fort Eustis.  She was informed that this behavior was in violation of the UCMJ and, if continued, could result in her being separated from the service.  The applicant stated that she did not remember getting a speeding ticket, but if she had, it would be taken care of right away.  She further stated that her life at that time was crazy and she needed time off.

6.  On 28 May 1987, the applicant’s first sergeant made a sworn statement that he overheard the applicant tell the company commander that she could not start restriction on that day because she had no one to pick up her child from school, or to watch her child.  The commander asked if she had someone to watch her child while she was on restriction for 14 days, to which she answered that she had to care for her own child.  The commander then asked if she had signed over custody of her child to another person upon entering the United States Army.  She said that she signed the document only so she could get into the United States Army.  The first sergeant reminded the applicant that the document she had signed stated that she had given custody to another person for the full term of her enlistment.  She stated that she still had to care for her own child and had no one to watch the child.

7.  On 15 June 1987, the applicant accepted NJP for being disrespectful in deportment toward a noncommissioned officer on three occasions and for willful disobedience of a lawful order from a noncommissioned officer.  The punishment included reduction to private, pay grade E1, forfeiture of $153.00 pay per month for 1 month, and 14 days restriction and extra duty (suspended).

8.  On 22 June 1987, the applicant was notified by her commander of his intent to separate her from the service under the provisions of Army Regulation 635-200, chapters 7 and 14 for fraudulent entry and misconduct, respectively.  The applicant consulted with counsel concerning her rights and elected to make a statement in her own behalf.  

9.  On 24 June 1987, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 7 for fraudulent entry and under chapter 14, for misconduct.  The commander stated that the applicant’s conduct had been prejudicial to good order and discipline and unit morale.  She had demonstrated that she had no desire to conform to military standards.  He further stated that her immediate discharge was in the best interest of the United States Army and that she should be discharged as soon as possible.  

10.  On 6 July 1987, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 7, for fraudulent entry and directed issuance of a General Discharge Certificate.

11.  On 14 July 1987 a medical examination found the applicant to be qualified for separation with a physical profile of 1.1.1.1.1.1.  At a mental status evaluation the applicant's behavior was normal.  She was fully alert and oriented and displayed an unremarkable mood.  Her thinking was clear, her thought content normal and her memory good.  There was no significant mental illness.  The applicant was mentally responsible.  She was able to distinguish right from wrong and to adhere to the right.

12.  Accordingly, on 21 July 1987, the applicant was discharged under honorable conditions.  She had completed 11 months and 10 days of creditable active service.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 7, paragraph 7-17, of that regulation provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions.  If in an entry level status the characterization will be uncharacterized.  

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 her rights.

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

3.  The evidence clearly shows that the applicant concealed information about her son which, if known and considered by the Army at the time of her enlistment might have resulted in her rejection.  Therefore, her enlistment was fraudulent.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

  _ JEV___  __TMR__  __JCR __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.






___James E. Vick ____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
 
DATE BOARDED
20080122 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.