IN THE CASE OF:	  

		BOARD DATE:	  24 July 2008

		DOCKET NUMBER:  AR20080009222 


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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, that at the time of his entry into the military he was just a juvenile.  He also states he was discharged for fraudulent entry and wishes to be buried honorably.  He therefore is requesting his UD be upgraded to an HD. 

3.  The applicant provides no additional documentary evidence in support of his application; however, he does provide a Congressional Inquiry packet with his 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 he enlisted in the Regular Army and entered active duty on 17 July 1961, and that he was trained in and awarded military occupational specialty (MOS) 112.07 (Heavy Weapons Infantryman).  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

3.  The applicant's Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does contain a properly constituted separation document (DD Form 214) that confirms that on 8 November 1962, he was discharged, in the rank of private/E-1, under the provisions of Section II, Army Regulation 635-206, by reason of fraudulent entry, and received an UD.  It also shows that he completed a total of 1 year, 2 months, and 26 days of active military service and had accrued 26 days of time lost.  The applicant authenticated the separation document with his signature in Item 34 (Signature of Person Being Transferred or Discharged) on the date of his discharge.    

4.  There is no indication in the record that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge within that board's 15 year statute of limitations.  

5.  Section II, Army Regulation 635-206, in effect at the time, prescribed the procedures for the processing of fraudulent entry cases and it provided for the administrative disposition of enlisted personnel found to have fraudulently entered the Army in violation of the Uniform Code of Military Justice (UCMJ).  Members separated under this provision normally received an UD unless the particular circumstances of the case, or there overall record of service, warranted an HD or general discharge (GD).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was a juvenile at the time of his enlistment and that his UD should be upgraded so that he can be buried honorably was carefully considered.  However, the record confirms the applicant successfully completed training and served for over a year prior to his discharge and as a result, it is apparent he possessed the maturity to serve successfully.  Further, although understandable, the fact he wants to be buried honorably alone does not provide a sufficient evidentiary basis to support an upgrade of his discharge at this late date.  


2.  The applicant’s record is void of facts and circumstances concerning events that led to a discharge from the Army.  However, his record does contain a properly constituted DD Form 214 that confirms he was discharged under the provisions of Section II, Army Regulation 635-206, by reason of misconduct (fraudulent entry).  The applicant authenticated this document with his signature on the date of his discharge.  In effect, his signature was his verification that the information it contained, to include the authority and reason for separation, was correct at the time the DD Form 214 was prepared and issued.  Therefore, there is a presumption of Government regularity in the discharge process.  

3.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition that would have supported the issue of an HD or GD by the separation authority at the time of the applicant's discharge, and the applicant has failed to provide any evidence that would suggest that his discharge processing was not accomplished in accordance with the applicable regulation in effect at the time.  Absent evidence to the contrary, it is concluded that the applicant's separation processing was accomplished in accordance with the applicable regulation, that all requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout the separation process.  In addition, it appears the applicant's UD accurately reflects his overall record of undistinguished service.  

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)                                         AR20080009222



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ABCMR Record of Proceedings (cont)                                         AR20080009222



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