IN THE CASE OF:	  

		BOARD DATE:	        05 AUGUST 2008

		DOCKET NUMBER:  AR20080007794 


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 uncharacterized discharge be changed to an honorable or general discharge. 

2.  The applicant essentially states that he was unaware that he had fraudulently entered the United States Army Reserve and Regular Army, and that he should be credited with the time he served on active duty in 1977 and 1978.  He also believes that his DD Form 214 (Report of Separation from Active Duty) is in error because he was under the impression that his mother authorized his enlistment at age 17, and that she had signed his enlistment paperwork.  He further states that he feels that at no time did he conceal his date of birth.

3.  The applicant provides his DD Form 214, a letter, dated 26 March 2008, from a Member of Congress' office, page 16 of 51 from a Correspondence Detail Report, a portion of his DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States), his enlistment/travel order, dated 
15 December 1977, a partially legible DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice [UCMJ]), in which he accepted nonjudicial punishment (NJP) on 20 June 1978, a DA Form 4187 (Personnel Action), dated 15 June 1978, which changed his duty status from confined by civil authorities to present for duty on 12 June 1978, and a letter, dated 4 April 2008, from the Platte County, Nebraska Veterans' Office in support of this application.



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 that he enlisted in the United States Army Reserve on 15 December 1977, and enlisted in the Regular Army on 
28 December 1977.  At the time, he was only 17 years old, and Part VI (Parental/Guardian Consent for Enlistment) of his DD Form 1966/6 essentially shows that the applicant's mother, who had sole custody of the applicant, consented to his enlistment prior to attaining 18 years of age.  Item 40 (Involvement with Police or Judicial Authorities) of his DD Form 1966/4 essentially shows that the applicant indicated that he had never been arrested, charged, cited, or held by Federal, State, or other law enforcement or juvenile authorities.  Item 41 (Remarks) of his DD Form 1966/5 essentially shows that the applicant acknowledged that he was not coached, coerced, or advised by his recruiter to conceal any type of potentially disqualifying information.  

3.  The applicant completed basic training; however, prior to completing basic training, he accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 0305 hours, 12 February 1978, and remaining so absent until on or about 0400 hours, 12 February 1978.  His punishment consisted of forfeiture of $92.00, restriction for 14 days, and extra duty for 14 days.

4.  After completing basic training, the applicant entered advanced individual training (AIT) for military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist).  However, he was relieved from this AIT because of academic deficiencies, and was entered into AIT for MOS 13F (Fire Support Specialist).  

5.  On 20 June 1978, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 5 June 1978, and remaining so absent until on or about 9 June 1978.  His punishment consisted of forfeiture of $92.00, restriction for 14 days, and extra duty for 14 days.

6.  Information in the applicant's military records reveal that the applicant admitted that he fraudulently enlisted in the Army by failing to disclose that he was charged with breaking and entering and larceny in November 1977.  

7.  On 18 July 1978, the applicant's commander recommended that he be discharged under the provisions of Chapter 14, Army Regulation 635-200 due to fraudulent enlistment for failing to list his convictions in item 40 of his DD Form 1966/4.  He also stated that the applicant had been trying to get out of the service since his arrival at his unit.  He also stated that the applicant's self-admitted fraudulent enlistment was disclosed for no purpose but to get himself discharged as early as possible.  He further stated that the applicant was unmotivated, did not apply himself, was immature, would never be an effective Soldier, and should be discharged at the earliest possible time.  

8.  On 2 August 1978, by order of the Commanding General, United States Army Field Artillery Center, it was directed that orders be issued to void the applicant's enlistment contract under the provisions of Section I, Chapter 14, Army Regulation 635-200, as the applicant had concealed civil conviction and that there was unverified recruiter connivance.  

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

10.  The applicant essentially stated that he was unaware that he had fraudulently entered the United States Army Reserve and Regular Army, and that he should be credited with the time he served on active duty in 1977 and 1978.  He also believes that his DD Form 214 is in error because he was under the impression that his mother authorized his enlistment at age 17, and that she had signed his enlistment paperwork.  He further stated that he feels that at no time did he conceal his date of birth.

11.  Army Regulation 635-200, chapter 14, in effect at the time, provided that commanders exercising general court-martial jurisdiction were authorized to approve a discharge of an enlisted person for fraudulent enlistment or to void a fraudulent enlistment by releasing an individual from Army control because of fraudulent entry.  

12.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  The regulation in effect at the time provides, in pertinent part, that individuals who have their enlistments voided by reason of fraudulent enlistment, would receive no credit for service nor would their service be characterized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his uncharacterized discharge should be changed to an honorable or general discharge. 

2.  The applicant's contention that his enlistment was voided because of his age was rejected.  His enlistment contract clearly shows that his mother consented to his enlistment in writing.

3.  The evidence is clear that the applicant was released and his enlistment contract was voided because he knowingly concealed his civil conviction.  The fact that he now, more than 29 years after the fact, believes that his enlistment was voided for any other reason does not begin to approach the threshold of proving, by a preponderance of the evidence, that an error or injustice occurred.

4.  In accordance with regulations, then in effect, instances of fraudulent entry due to concealment of conviction by civil court required commanders to void the fraudulent enlistment contract and release the member from Army control.  Therefore, the applicant's enlistment was properly voided and a DD Form 214 was issued which released him from the control of the Army.  Since the applicant's enlistment was voided, he did not receive a character of service.

5.  Evidence of record shows that the applicant was released from military service under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – fraudulent entry for concealment of civil conviction.  In the absence of a record of satisfactory service, the applicant is not entitled to a characterization of his service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080007794



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ABCMR Record of Proceedings (cont)                                         AR20080007794



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