IN THE CASE OF:	  

		BOARD DATE:	  3 September 2008

		DOCKET NUMBER:  AR20080008426 


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 Item 28 (Narrative Reason for Separation) of her separation document (DD Form 214) be changed.  

2.  The applicant states, in effect, that the Record of Emergency Data
(DD Form 93) prepared upon her entry on active duty confirms she disclosed her marital status and dependents at that time and forms the basis for correcting Item 28 of her separation document from misconduct to fraudulent enlistment, which is a more favorable entry.

3.  The applicant provides a self-authored letter, DD Form 214, and DD Form 93 in support of her 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 record shows she enlisted in the Regular Army and entered active duty on 17 April 1979.  Her record contains a Record of Military Processing - Armed Forces of the United States (DD Forms 1966/1 thru 8) prepared during her enlistment processing.  DD Form 1966/1, Item 9 (Marital Status) contains the entry “Single” and Item 10 (Number of Dependents) contains the entry “0.”  

3.  DD Form 1966/3, Item 29 (Marital Status and Dependency) shows the applicant initialed the “NO” block in response to the following questions:  "Are you now or have you ever been married?"; "If you have been married, are you now living with your spouse?"; Have you ever been divorced or legally separated?"; Is any court order or judgment in effect that directs you to provide support for children or alimony?"; Is any person dependent on you for their support?”  Item 30 (Relatives) contains blank entries under the “Spouse (Maiden Name)” and “Children” headings.  On 28 March 1979, the applicant authenticated her application for enlistment by affixing her signature in Item 39, Section V – Certifications and Item 44, Section VIII – Recertification by Applicant and Correction of Data at the Time of Active Duty Entry.

4.  The applicant's record shows she completed basic training at Fort Dix, 
New Jersey, and advanced individual training (AIT) at Fort Lee, Virginia.  Upon completion of AIT, she was awarded military occupational specialty (MOS) 
76D (Material Supply Specialist). 

5.  On 7 September 1979, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 3 to 5 September 1979.  

6.  The applicant's record contains two DD Forms 93, dated 10 October and 
26 November 1979, which both show the applicant’s marital status as divorced.  These documents also list the names and address of the applicant’s two dependent children.

7.  On 17 January 1980, the unit commander initiated action to eliminate the applicant from the Army under the provisions of Chapter 14, Army Regulation 635-200, by reason of misconduct.  The unit commander cited the applicant's fraudulent entry, as the primary basis for the separation recommendation and he indicated that her conduct was marginal at best.

8.  On 23 January 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, and of the rights available to her and the effect of a waiver of those rights.  She elected 
to waive her right of consideration of her case by a board of officers, personnel appearance before a board of officers, representation by counsel, and to make a statement on her own behalf.

9.  On 13 February 1980, the separation authority approved the applicant's discharge and directed the applicant receive an honorable discharge (HD).  On 27 February 1980, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant at the time shows she held the rank of private/E-1, and that she had completed a total of 10 months and 9 days of creditable active military service.  Item 25 (Separation Authority) shows she was separated under the provisions of Chapter 14, Army Regulation 635-200; Item 26 shows she was assigned a Separation Program Designator (SPD) code of JKG, and Item 
28 (Narrative Reason for Separation) lists the reason for her separation as "Misconduct-Fraudulent Entry."

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the narrative reason for her separation should be corrected because she disclosed her marital status and dependents when the DD Form 93 was prepared upon her entry on active was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant falsified an official document during the enlistment process when she attested to the fact she had never been married and that she had no dependents in the DD Form 1966 series prepared during her enlistment processing, which she certified on 28 March 1979 and recertified on 17 April 1979, with her signatures.  In effect, her signatures on this document were her verification that the information it contained was correct at the time of her initial application for enlistment and when she entered active duty. As a result, she clearly applied for enlistment and entered active duty under false pretenses.

3.  The evidence of record also confirms that the applicant did not disclose her marital status and dependents upon her entry on active duty on 17 April 1979, as she claims.  The DD Forms 93 on file are dated 10 October 1979, which is more than five months after the applicant’s entry on active duty.  The record confirms 
the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  Therefore, absent any evidence of error or injustice in her discharge processing, the narrative reason for separation contained in Item 28 of her DD Form 214 was and remains valid, and there is an insufficient evidentiary basis to support granting the requested relief in this case.  

4.  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)                                         AR20080008426



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ABCMR Record of Proceedings (cont)                                         AR20080008426



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