RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 22 April 2008 
	DOCKET NUMBER:  AR20080000534 


	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.









      The following members, a quorum, were present:













	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 undesirable discharge be upgraded to honorable. 

2.  The applicant states, in effect, that he believes his application should be considered in the interest of justice because he was not given any representation or permitted to speak in his own behalf.  He also states that he had requested mental health help.  He also thinks that the commanding officer (since he was black) was less than objective to his situation.  He is service retired, has completed a Master Degree, and is a Merchant Marine Officer.

3.  The applicant provides an additional letter in support of his request.  He states that he was pretty loony when he was in his late adolescence and early adulthood. It is beside the point as to whether he felt that he was treated unfairly or not, as he was wrong and probably did not deserve anything except the way it turned out; when he thinks in terms of quality and the cost of the many men who may have entered the military fraudulently, as he had.  He further states that he is still embarrassed and ashamed that he had used such poor judgment when he made the choices he had made.  So now he is merely trying to seek a final closure of the Army chapter.  

4.  In support of his request, the applicant provides copies of his Bachelor of Arts and Master of Arts degrees; his certificate of completion of 30 hours of the “Perpetrator Treatment Training, Domestic Violence: Perpetrator Intervention” educational program; his US Merchant Marine Officer License; a letter indicating his completion of the basic training course for the Rape Crisis Volunteers; and a character reference letter from his employer, dated 4 June 1975.

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 contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 1 March 1960, that shows the applicant enlisted in the Air Force on 11 May 1956 and was separated on 1 March 1960 with a general discharge.

3.  The applicant's military record shows he enlisted in the Regular Army, in pay grade E-1, on 10 October 1960, for 3 years.  His DD Form 4 (Enlistment Record – Armed Forces of the United States), Item 32 (Prior Service) shows the entry, "NONE."  He was assigned military occupational specialty 006.00, Basic Trainee.

4.  In a statement, dated 9 January 1961, the applicant stated, in effect, that his Air Force record consisted of two summary courts-martial, one for petty theft and one for being absent without leave.  He was in his first year when those offenses took place.  He straightened out and kept an exceptionally good record until February 1960.  During that time he wrote a bounced check to the base exchange.  Because of his previous record he was told it would be best for him to be discharged under Air Force Regulation 39-16 or his discharge could be changed to an undesirable discharge and he did not want that.  He had hoped to join the Army and clear his old road of troubles and make a new record for himself, which he was sure he was capable of doing.  He stated he appreciated the chance to prove himself to the Army, his family, and himself.

5.  In a memorandum, dated 7 February 1961, The Adjutant General, notified the Commanding General, Second Armored Division, Fort Hood, Texas, that fingerprints of the applicant were identical to a Soldier who enlisted in the Air Force on 11 May 1956 and was issued a General Discharge Certificate on 1 March 1960, pursuant to Air Force Regulation 39-16 (Unsuitability).  When the applicant enlisted on 10 October 1960, he claimed no prior service.  At the time of the enlistment of 10 October 1960, he concealed his prior service, and that such enlistment was fraudulent within the purview of paragraph 13f, section II, Army Regulation 635-206.

6.  On 15 February 1961, it was determined that the applicant fraudulently entered the service.

7.  On 17 February 1961, the applicant's unit commander recommended that he be eliminated from the service for fraudulent entry.  The unit commander stated that the applicant had been a constant problem in the organization.  He believed that the applicant would not prove himself a better Soldier than what his general discharge indicated.  The applicant had already demonstrated being a very poor Soldier in the organization.

8.  On 27 February 1961, the Assistant Adjutant General, approved the discharge of the applicant with an undesirable discharge, under the provisions of Army Regulation 635-206.

9.  The applicant was discharged on 9 March 1961, in pay grade E-1, under the provisions of Army Regulation 635-206.  His character of service was shown as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  He was credited with 5 months total active service.

10.  On 21 March 1961, the applicant applied to the Army Discharge Review Board (ADRB) requesting upgrade of his undesirable discharge to honorable.  On 7 June 1961, the ADRB denied the request and determined that he was properly discharged.

11.  On 12 June 1961, the Acting TAG, US Army, advised the applicant in response to his correspondence regarding his eligibility for enlistment in the Army Reserve.  The Acting TAG stated that it was determined the applicant did not meet the current requirements for enlistment in the Army Reserve due to the circumstances related to his last discharge.  A waiver to permit his enlistment in the Army Reserve was not considered appropriate.

12.  In a letter, dated 4 April 1967, reference the applicant's letter concerning a review of his discharge, reenlistment eligibility, and requesting a copy of his DD Form 214, the applicant was advised that the ADRB concluded that he had been properly discharged in accordance with regulations at the time of his separation.  A review of his records revealed that he was discharged from the US Air Force on 1 March 1960 by reason of unsuitability.  Individuals separated from other branches of the Armed Forces by reason of unsuitability are ineligible for enlistment in the Regular Army and waivers are not granted.  

13.  The letter further stated that he enlisted in the Regular Army on 10 October 1960, at which time he claimed no prior service.  It was subsequently discovered that he had prior Air Force service and he was discharged on 9 March 1961 for fraudulent entry.  Individuals separated from service for that reason were ineligible for enlistment in the Regular Army unless a waiver was granted.  However, since he concealed a disqualification which would have precluded his initial enlistment in the Regular Army, a waiver to permit reenlistment could not be justified.  Accordingly, his tender of service must be declined.



14.  The applicant submits evidence showing he received a Bachelor of Arts degree in 1974 and a Master of Arts degree in 2002.  He also submits evidence 
showing he completed the Perpetrator Treatment Training, Domestic Violence: Perpetrator Intervention program and that he was licensed by the United States Coast Guard, Merchant Marine, on 9 September 2004.  He further submits evidence showing completion of the basic training course for Rape Crisis Volunteers and a character reference letter from his employer, dated 4 June 1975.

15.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Section II of the regulation prescribed procedures for processing fraudulent entry cases for misconduct by reason of fraudulent entry into the service.  It also stated that fraudulent entry is the procurement of an enlistment, induction, or period of service through any deliberate material misrepresentation, omission, or concealment, which if known, might have resulted in rejection.  Any incident, which meets the foregoing, may be cause for discharge for fraudulent entry.  An under other than honorable conditions discharge (undesirable discharge) was normally considered appropriate unless the particular circumstances of the case warrant an honorable or general discharge.  

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  


2.  The evidence of record shows the applicant was recommended for discharge by reason of fraudulent entry.  He was also afforded the opportunity to submit a 
statement in his own behalf, which he submitted on 9 January 1961.  At the time of his separation processing, his unit commander stated that he had been a constant problem in the organization and had already demonstrated being a very poor Soldier in the organization.

3.  The applicant's contentions have been noted.  However, the fact remains that he concealed his prior service in the Air Force at the time of his enlistment in the Regular Army on 1 October 1960.  Without a waiver being granted, that was a disqualification which would have precluded his enlistment.  On 6 June 1961, the ADRB denied his request for upgrade of his discharge to honorable and determined that he had been properly discharged.  

4.  The applicant has provided no evidence to show that his discharge was unjust at the time.  By the applicant's own admission, he stated that he was wrong and probably did not deserve anything except the way it turned out.  The applicant has submitted neither probative evidence nor a convincing argument that his post-service achievements warrant a fully honorable discharge from the Army. 

5.  The evidence shows that all requirements of law and regulation appear to have been met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge was normally undesirable.  Due to the circumstances of the case, an honorable or general discharge was not warranted.

6.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x___  __x___  _x       ___  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.




      _____ x___________
                CHAIRPERSON



ABCMR Record of Proceedings (cont)                                         AR20080000534


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508