IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080006193 


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 discharge be corrected. 

2.  The applicant states, in effect, that the type of discharge he received was unjust and everything he did was done legally.  He came in the Army and there was an error in his paperwork for him not being able to get what was rightfully coming to him from the Army. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 record shows he enlisted in the Regular Army on 10 December 1976.  He was trained as a Food Service Specialist, in military occupational specialty (MOS), 94B.  He was promoted to pay grade E-2 on 17 February 1977.

3.  The applicant's record contains a copy of his DD Form 1966 (Application for Enlistment – Armed Forces of the United States), which was completed prior to his enlistment.  Item 40 (Involvement with Police or Judicial Authorities), of Section IV (Other Background Data), of his DD Form 1966, shows he indicated that he had no law violations.

4.  The applicant’s records contain a copy of an FBI (Federal Bureau of Investigation) report, dated 21 January 1977, which disclosed his criminal history. It indicates that he was arrested on 28 September 1974, for possession of a controlled substance.  The charge was dismissed on 12 October 1974.  On 12 May 1975, the applicant was arrested for robbery of a business where a gun was involved and he was a party to a crime.  The applicant was convicted on 17 October 1975, sentenced to confinement for 6 months, probation for 2 years, and required to pay court cost of $29.00.  The applicant was to make restitution.  On 28 August 1975, the applicant was arrested for obstruction of an officer by giving him a false name.  He was convicted on 21 November 1975 and was sentenced to confinement for 90 days.  The applicant pled no contest.

5.  The applicant’s records contain a copy of DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 20 August 1977, which indicates that he was suspected of fraudulent enlistment.

6.  On 9 September 1977, the applicant's commander initiated action to eliminate him 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 knowledge and intentional falsification of his DD Form 1966 pertaining to his past record of arrests and criminal conviction by civil authorities.  

7.  On 10 September 1977, the applicant acknowledged receipt and understood the commander's intention to initiate action to separate him for fraudulent entry.

8.  On 10 September 1977, the commander submitted his recommendation to separate the applicant from the Army, under the provisions of Army Regulation 635-200, chapter 14, for misconduct-fraudulent entry, due to his concealment of his conviction by civil court. 



9.  On 12 September 1977, the battalion commander recommended that the applicant be retained on active duty.  On 21 September 1977, the division artillery commander, an O-6, also recommend the applicant's retention on active duty.  

10.  On 29 September 1977, the separation authority, a Major General (MG), approved the recommendation for the applicant's discharge.  The MG indicated that the enlistment of the applicant was voided in accordance with regulation.  

11.  The applicant was issued a DD Form 214 on 26 October 1977 with his character of service and type of certificate issued as "NA" (not applicable).  Item 27 (Remarks), of his DD Form, indicated the entry, "Service This Period is Voided and Not Creditable For Promotion or Longevity."

12.  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 incidents 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DA Form 1966, 8 December 1976, clearly indicates the applicant reported that he had no law violations prior to his entry on active duty, which was false.  

2.  The evidence disclosed by the FBI shows he was arrested on 28 September 1974, for possession of a control substance; on 12 May 1975, for robbery; and on 28 August 1975, for obstruction of an officer by giving him a false name.

3.  The DA Form 3881 indicates that the applicant was suspected of fraudulent enlistment.  Based on this suspicion and other official FBI records, the applicant's unit commander exercised his command authority and recommended he be discharged from the Army for fraudulent enlistment.


4.  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.  

5.  The applicant claims that the type of discharge he received was unjust.  His period of service on active duty from 10 December 1976 to 26 October 1977 was declared void and not creditable for promotion or longevity.  

6.  The applicant claims that what he did was done legally; however, the Government determined that it was fraudulent entry and he had failed to disclose that he had no law violations when he actually did and he should have informed authorities prior to enlisting.  The time he served on active duty was considered null and void.

7.  The applicant alleges that there is an error in his paperwork for him not being able to get what is rightfully coming to him from the Army.  He has provided no evidence, and there is none, to show that an error occurred or that he is specifically entitled to anything that he did not receive.  

8.  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)                                         AR20080006193



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ABCMR Record of Proceedings (cont)                                         AR20080006193



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