IN THE CASE OF:	  

		BOARD DATE:	        21 October 2008

		DOCKET NUMBER:  AR20080011366 


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 there was no “fraudulent” enlistment or “concealment” because he and two family members were present with his recruiter and they discussed his juvenile arrest record and the recruiter assured them it was “no problem.”  He states that this reason for discharge cannot be permitted to stand and that it has caused ruinous harm to his life.  He further states that his family was falsely informed it was a “maturity” or “adjustment” issue.

3.  The applicant provides an affidavit from his mother; a letter, dated 12 March 2007, from another relative; and a copy of his DD Form 214 (Report of Separation from Active Duty), in support of 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.  Part II (Statement of Law Violations and Previous Conditions), Number 
3 (Have you ever been arrested, cited, charged or held by Federal, State, County, City or other law enforcement authorities or by Juvenile Court or Juvenile Probation Officials for any violation of any Federal Law, State Law, County or Municipal Law, Regulation or Ordinance?) on the applicant's DA Form 3286 (Statements for Enlistment), dated 25 September 1974, shows he marked “No.”  He enlisted on 13 December 1974 for a period of 4 years.  

3.  A background investigation revealed that the applicant concealed prior civil convictions of possession of marijuana, operating a vehicle without a driver’s license, and breaking and entering.  

4.  On 21 March 1975, the applicant was discharged under honorable conditions (a general discharge) under the provisions of Army Regulation 635-200, paragraph 5-38, for concealment of arrest record.  He had completed 3 months and 19 days of creditable active service.

5.  Item 9c (Authority and Reason) and item 27 (Remarks) on the applicant’s DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-38, for miscellaneous individual reasons (concealment of arrest record) with SPD (Separation Program Designator) JND.

6.  In support of his claim, the applicant provided an affidavit from his mother, dated 20 March 2007.  In summary, she states that prior to her son’s enlistment the recruiter assured her and other family members that his prior juvenile arrest would be “waivered.”  She indicates that her son was the victim of discrimination by his commanding officer and that the commanding officer told her that her son was “not mature enough” to be in the Army.  But after her son’s discharge, the separation paperwork from the Army did not reflect the commanding officer’s story. 
   
7.  The applicant’s mother also attests that prior to her son’s entry in the service he never displayed overt aggression towards others, never appeared to have any significant depression or emotional problems, never had problems establishing or keeping friendships or interpersonal relationships, nor did he have any difficulties in obtaining employment.  However, all of these serious characteristics appeared shortly before his discharge and or fully developed within a few months of his 

military service.  She states that she received waffling and inconsistent stories from military staff as to why her son would be discharged, that the “problems” only seemed to have risen near the last few weeks of his service.  She was otherwise informed by the military staff that her son had performed well, “done his best,” that he had earned medals in training performance with various weapons, and that he had been awarded the National Defense Service Medal.  She further states that after her son’s discharge it was determined that he suffered from Post Traumatic Stress Disorder directly related to his time in the Army and that he is currently incarcerated for a term of life for an alleged “felony threat.”  

8.  On 19 August 1976, the Army Discharge Review Board upgraded the applicant’s general discharge to honorable.

9.  Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 (Separation for Convenience of the Government), paragraph 5-38, provided, in pertinent part, that enlisted personnel who concealed an arrest record which did not result in civil court conviction at the time of enlistment or induction might be discharged.  Individuals discharged under this paragraph would be given an honorable discharge or a general discharge.  

10.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation in effect at the time stated the reason for discharge based on separation code “JND” is “Miscellaneous individual reasons (concealment of arrest record)” and the regulatory authority is Army Regulation 635-200, paragraph 5-38.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were noted.  However, evidence of record shows he concealed an arrest record on his enlistment contract. 

2.  The applicant’s narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.  





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XX______  ____XX____  ___XX_____  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.



      _______XXXX_______________
               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)                                         AR20080011366



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ABCMR Record of Proceedings (cont)                                         AR20080011366



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