RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 8 May 2008
DOCKET NUMBER: AR20080002073
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.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
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 reconsideration of his earlier request to correct his records to void his second period of military service.
2. The applicant states, in effect, that he should never have been permitted to enlist a second time because he had received a general discharge in 1961 that required a waiver which was never obtained. He further contends that the recruiter was very dishonest and made changes to his civilian and military records. He wants his second term of service expunged because it was fraudulent.
3. The applicant provides a copy of his draft card that was issued to him in 1970.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070001572, on 30 August 2007.
2. A review of the original Board proceedings shows that the applicants implied contention that his enlistment on 25 June 1969 was fraudulent and should be expunged was not addressed by the Board.
3. The applicants military records covering his first term of service are not available for review. However, there are sufficient records from his subsequent term of service available to conduct a fair and impartial review of this specific request.
4. Records show that that the applicant served on active duty in the United States Army in Japan from October 1959 to August 1961.
5. On 2 October 1967, the applicant enlisted in the Regular Army for 2 years. He was assigned to Fort Dix, New Jersey for advanced individual training.
6. On 23 April 1968, the applicant was convicted by special court-martial of being absent without leave (AWOL). His sentence consisted of hard labor without confinement for 4 months.
7. On 14 April 1969 the applicant went AWOL. He was returned to military control on or about 13 October 1969 (182 days).
8. The applicant's Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he enlisted for another 2 years in the Regular Army on 25 June 1969. There is no available documentation to verify this date.
9. On 14 November 1969, the applicants battalion commander recommended that he receive a punitive discharge by a General Court-Martial. The charge sheet is not available for review.
10. The applicant requested to be discharged in lieu of court-martial charges. His request was granted and he was subsequently discharged.
11. Army Regulation 635-200 (Personnel Separations) provides in pertinent part that fraudulent entry is the procurement of an enlistment, re-enlistment, 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 re-enlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. It further provides that the commander will not void a fraudulent entry when court-martial charges are pending or contemplated.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record substantiates the applicants contention that he served on active duty from 1958 to 1961. However, there is no available evidence showing that he received a general discharge for that period of service that would have required a waiver to reenlist.
2. The evidence of record clearly shows that the applicant enlisted for 2 years on 25 June 1969; was charged with AWOL; and was subsequently discharged in lieu of those charges.
3. The available evidence of record does not substantiate the applicants contention that his second enlistment was fraudulent. However, even if it was, his subsequent misconduct resulting in court-martial charges would have prevented his enlistment to be voided based on that fraud.
4. In view of the above, the applicants request to void his enlistment ending on
3 December 1969 should be denied.
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 to amend the decision of the ABCMR set forth in Docket Number AR20070001572, dated 30 August 2007.
__________X____________
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20080002073
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA 22202-4508
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