IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080005602 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general discharge, under honorable conditions, be upgraded to honorable.

2.  The applicant states, in effect, that he received a general discharge, under honorable conditions, and 2 years later a waiver was accepted and he was asked to upgrade his discharge.

3.  The applicant provides no additional documentation in support of his request.

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 records show he enlisted on 23 April 1974.  He was scheduled for training in military occupational specialty (MOS), 63A, Mechanical Maintenance Helper.  

3.  Part II (Statement of Law Violations and Previous Conditions), of his DA Form 3286 (Statement for Enlistment), which was completed prior to his enlistment, in item Number 3 shows he indicated that he had no law violations.  His continuation sheet and certificate indicate that should he intentionally conceal or misrepresent any law violations, he may later be subject to disciplinary action or discharge from the service. 

4.  The applicant's records contain a copy of an ENTNAC (Entrance National Agency Check) Summary which disclosed his criminal history.  It indicates that he was arrested on 8 February 1972, for auto burglary and possession of stolen property; on 14 March 1972, for receiving stolen things; on 29 April 1972, for a concealed weapon, gun; and on 19 August 1972, for carrying a concealed weapon, 5-inch blade knife.

5.  The ENTNAC Summary shows the applicant was convicted of the auto burglary and possession of stolen property in view of the fact he was placed on probation for one year.  The disposition of other charges for which he was arrested are listed as "unknown" and as "affidavit refused."

6.  On 6 June 1974, the commander recommended that the applicant be eliminated from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct-fraudulent entry.  He cited as the basis for his recommendation, the applicant’s concealment of his arrest record.  He recommended that the applicant receive a general discharge. 

7.  On 26 June 1974, the separation authority approved the recommendation for the applicant's discharge and directed that he be furnished a general discharge.  The applicant was discharged on 8 July 1974. 

8.  Army Regulation 635-200 establishes policy and prescribes procedures for 
processing fraudulent entry cases and provided for the administrative disposition for enlisted personnel for misconduct by reason of fraudulent entry into the service.  Paragraph 14-4 pertains to incident of fraudulent entry.  It states that 
fraudulent entry is the procurement of an enlistment, induction, or period of active 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.  All service performed under a fraudulent enlistment is considered null and void.

9.  Subparagraph 14-4c states, in pertinent part, that concealment of conviction by civil court was cause for separation for fraudulent entry.   

10.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DA Form 3286 (Statements for Enlistment), dated 19 April 1974 clearly indicates the applicant reported that he had no law violations prior to his entry on AD, which was false.  

2.  The evidence disclosed by the ENTNAC Summary show he was arrested on 8 February 1972, for auto burglary and possession of stolen property; on 14 March 1972, for receiving stolen things; on 29 April 1972, for a concealed weapon, gun; and on 19 August 1972, for carrying a concealed weapon, 5-inch blade knife.

3.  The applicant was properly discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct-fraudulent entry, concealment of conviction by civil court.  

4.  There is no evidence in the applicant's records, and the applicant has provided none, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

5.  The applicant contends that 2 years later, in effect, after his discharge, a waiver was accepted and he was asked to upgrade his discharge.  There is no evidence, and the applicant has provided none, to support his contention. 

6.  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

____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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005602



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ABCMR Record of Proceedings (cont)                                         AR20080005602



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