IN THE CASE OF:	

		BOARD DATE:	  15 October 2008

		DOCKET NUMBER:  AR20080009052 


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 narrative reason for separation be changed.

2.  The applicant states, in effect, that he provided no false information at the time of his induction.  He was told to list only those dependents that were born as a result of his marriage.  He was also coerced to sign paperwork giving up his rights to medical benefits, housing assistance, and the college fund.  He served honorably, incurred a disability, and deserves all rights to which every Soldier is entitled.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 entered active duty on 27 October 1987, completed training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).

3.  A DD Form 1996/2 (Personal Data Sheet) completed at the time the applicant entered active duty shows he listed his wife (but checked her as not being a dependent), a daughter S____ H______ date of birth (DOB) 5 December 1975, and a son F___ H______ IV, DOB 2 May 1982.  

4.  A Rapids Form T1172-1 (Application for Uniformed Services Identification Card), prepared on 29 December 1987, for his wife S____ H______, shows that legal documentation to verify eligibility and dependency was presented in the form of a marriage certificate and birth certificate.  The documentation associated with this application consists of birth certificates for the following: 

	a.  the applicant's wife S____ H____; a daughter S____ H____, DOB 
5 December 1975; a son F____ H____ IV, DOB 2 May 1982; and a daughter K____ H____, DOB 3 November 1987; and 

	b.  a son F____ E____-W___ H____ IV, (born to the applicant and 
C___ E____), DOB 21 June 1981. 

5.  The documentation provided at this time does not indicate whether the applicant had custody of his son F____ E____-W___ H____ IV or if he was required to pay any type of child support. 

6.  A Personnel Qualification Record, dated 8 July 1988, shows the applicant had three dependents.

7.  On 17 June 1988, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absence without leave (AWOL) 
19 days.  Also Between April and July the applicant received four counseling statements for problems involving his conduct that stemmed from family related problems. 

8.  On 26 September 1988, the applicant's command initiated separation proceedings under Army Regulation 635-200, paragraph 7-15, erroneous or defective enlistment.  


9.  The applicant provided a written statement at the time of separation processing stating that he told his recruiter that he was married and had two children from this marriage and that he had a child out of wedlock.  The recruiter told him to list only those children that were born of his marriage.

10.  The separation authority approved the discharge and directed that the applicant be separated with an honorable discharge.

11.  The applicant was honorably discharged on 25 October 1988.

12.  The applicant's service medical records are believed to be on indefinite loan at the Department of Veterans Affairs (VA) and are not available for review.

13.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

14.  Army Regulation 600-200, paragraph 7-15 states that an enlistment is erroneous if it would not have occurred had the relevant facts been known by the Government or had appropriate directives been followed and was not the result of fraudulent conduct on the part of the Soldier.

15.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), as then in effect, shows the dependency criteria and eligibility for enlistment was limited to a spouse and two or fewer other dependents.  An applicant with three or more dependents is normally not eligible for enlistment.  This includes those applicants who are married and under court ordered to pay child support for one or more dependents from previous marriage or relationship and, when added to total of dependents from current marriage or relationship, the number of dependents under the age of 18, in addition to the spouse, is more than two.

DISCUSSION AND CONCLUSIONS:

1.  At the time of his enlistment the applicant listed his wife and two children between him and his wife as dependents.  

2.  It appears, the applicant had a child by a woman other than his wife at the time he enlisted and that child’s legal status as a dependent is not clear from the available documentation.  However, at some point, either at the applicant’s time of entry on active duty or shortly thereafter, the applicant provided a birth certificate that gave the impression that he desired that this child be considered his dependent.  

3.  Since the applicant’s third child had been born prior to his entry onto active duty, the applicant was considered to have had a wife and three dependent children.  As such he would not have met enlistment eligibility based on dependency and his entry was erroneous.

4.  The applicant and his wife had a fourth child that was born after the applicant had already entered active duty, however, this child would not have precluded the applicant from entering active duty.

5.  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)                                         AR20080009052



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009052



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1