IN THE CASE OF:	

		BOARD DATE:	       7 October 2008

		DOCKET NUMBER:  AR20080012228 


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 that his Social Security Number (SSN), character of service, and statement of service be corrected on his DD Form 214 (Report of Transfer or Discharge).

2.  The applicant states that the SSN shown on his DD Form 214 is not his SSN, that he was discharged for medical reasons and not for misconduct, and that he served almost six months of service. 

3.  The applicant provides a copy of his DD Form 214; a statement from the Social Security Administration; and service medical records.

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 DD Form 398 (Statement of Personal History), dated 
16 November 1966, shows the SSN 5__ - 5_ - 0___.  

3.  Item 27 (Have you ever been arrested, charged, or held by Federal, State, or other law enforcement authorities for any violation of any Federal law, State law, County or Municipal law, regulation or ordinance?) on the applicant’s enlistment record shows he marked “No.”  He enlisted on 16 November 1966 for a period of 3 years.  

4.  On 16 January 1967, the applicant submitted a request for separation.  He indicated that he had been notified by competent medical authorities that, based on preliminary findings, he was erroneously enlisted or inducted because he did not meet the procurement medical fitness standards for enlistment or induction.  

5.  On 2 February 1967, a Medical Board Proceedings found the applicant medically fit for further military service in accordance with current medical fitness standards and diagnosed him with renal glycosuria, existed prior to service (EPTS), disqualifying for procurement but not for retention; rupture anterior cruciate ligament, old, right knee, EPTS, disqualifying for procurement but not for retention; and rupture of medial collateral ligament, old, right knee, EPTS, disqualifying for procurement but not for retention.  The Medical Board recommended that the applicant be returned to duty for separation under the provisions of Army Regulation 40-3 and Army Regulation 635-200, paragraph 
5-9.  The approval authority approved the findings and recommendation of the Board on 3 February 1967.  On 3 February 1967, the applicant was informed of the approved findings and recommendations of the Board.   

6.  On 14 March 1967, the applicant’s commander recommended that he be discharged under the provisions of Army Regulation 635-206, for fraudulent entry.  He cited that the applicant concealed the fact that criminal charges had been filed and were pending against him and that he had concealed medical information when completing his Report of Medical History that would have made him ineligible for enlistment had it been known at the time.
 
7.  The applicant requested consideration of his case by a board of officers.  A board of officers convened on 18 April 1967 to determine whether the applicant should be eliminated from the service for fraudulent entry under the provisions of Army Regulation 635-206.  The board found that the applicant was undesirable for further retention in the military service because he entered the service under fraudulent conditions in that he concealed facts that existed prior to entry that would have made him ineligible for acceptance.  The board recommended that the applicant be discharged from the Army because of misconduct (fraudulent entry) with the issuance of an undesirable discharge.  On 19 May 1967, the separation authority disapproved the recommendation of the board and directed that the applicant be discharged for fraudulent entry under the provisions of Army Regulation 635-206 and that he be furnished a general discharge certificate. 

8.  Accordingly, on 22 May 1967, the applicant was discharged under honorable conditions (a general discharge) under the provisions of Section V, Army Regulation 635-206, for misconduct (fraudulent entry).  

9.  Item 3 (Social Security Number) on the applicant’s DD Form 214 shows the same SSN as reflected on his DA Form 398.  Item 13 (Character of Service) on his DD Form 214 shows the entry, “UNDER HONORABLE CONDITIONS.”  Item 22 (Statement of Service) on his DD Form 214 shows the entries, “0.”  

10.  In support of his SSN claim, the applicant provided documentation from the Social Security Administration which shows his SSN is 4__ - 4_ - 9___ and that this SSN is the only SSN ever assigned to him.  

11.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The regulation, in effect at the time, stated that a DD Form 214 would not be issued to enlisted personnel who were dropped from a period of service because of fraudulent enlistment or induction in accordance with section V, Army Regulation 635-206.

12.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Section II of the regulation provided for the separation of personnel for fraudulent entry into the Army.  This regulation, in pertinent part, provides for proof of concealment of criminal record. Normally an individual discharged under this section will be given an Undesirable Discharge, unless the particular circumstances of the case warrant an Honorable or General Discharge.     

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the same SSN was used at the time of the applicant’s enlistment and discharge.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, this Board is reluctant to recommend that those records be changed.  Therefore, there is an insufficient basis for amending his SSN on his DD Form 214.  

2.  Evidence of record shows the applicant was processed for medical conditions. However, a Medical Board Proceedings found him medically fit for further military service in accordance with current medical fitness standards.  Although he contends that he was discharged for medical reasons and not misconduct, evidence of record shows he was discharged for fraudulent entry and issued a general discharge.  Therefore, there is no basis for granting the applicant’s request to change his character of service on his DD Form 214. 

3.  Since the governing regulation states that a DD Form 214 would not be issued to enlisted personnel who were dropped from a period of service because of fraudulent enlistment or induction in accordance with section V, Army Regulation 635-206, it appears the applicant was erroneously issued a DD Form 214.  Therefore, there is no basis for granting his request to amend his statement of service on his DD Form 214.

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)                                         AR20080012228





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ABCMR Record of Proceedings (cont)                                         AR20080012228



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