IN THE CASE OF:	  

		BOARD DATE:	  	  6 November 2008

		DOCKET NUMBER:  AR20080013154


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 separation code of "JDA" (Fraudulent Entry), reentry eligibility (RE) code of RE-3, and narrative reason for separation be changed.  He also requests a personal appearance before the Board.

2.  The applicant states, in effect, that he informed his recruiter and counselor of his traffic offense and pending court date.  He states that the recruiter told him that his ticket and court date would not be an issue because the court date was after basic combat training and advanced individual training and it would not interfere with his training.  He states he also explained to the counselor at the Fort Dix, New Jersey, processing station regarding his ticket and court date but he was told that it would be "no problem whatsoever."  He alleges that the recruiter told him to "just answer NO" to anyone asking about tickets.  He also alleges that the counselor told him to select "NO" to the corresponding question on the USMEPCOM Form 601-23-5-R (Introductory Preaccession Interview).  He states that he did not conceal any information and he feels that his discharge was unjust.

3.  The applicant provides a copy of his Introductory Preaccession Interview Form and 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.  On 19 November 2003, a recruiter submitted a DD Form 369 (Police Record Check) on the applicant to the New Jersey State Police.  The New Jersey State Police Department did not mark "Yes" or "No" in block 13 (Is Applicant Now Undergoing Court Action of Any Kind?) of this form but entered the statements, "IAW 1st BDE PAL, the New Jersey State Police charge a $15.00 fee for Arrest/Conviction information.  Letter on file Mid-Atlantic Recruiting Battalion dated 13 May 1999."

3.  On 19 November 2003, a recruiter submitted a Police Record Check on the applicant to the Warren County Criminal Division.  This division marked "No" in block 12 (Has the Applicant a Police or Juvenile Record, to Include Minor Traffic Violations?) and marked "No" in block 13 indicating the applicant was not undergoing court action of any kind.

4.  The applicant enlisted in the Army Reserve on 1 December 2003 under the delayed entry program.  He signed under block D (Certification and Acceptance) of his enlistment contract which states, "My acceptance for enlistment is based on the information I have given in my application for enlistment.  If any of that information is false or incorrect, this enlistment may be voided or terminated administratively by the Government or I may be tried by a Federal, civilian, or military court and, if found guilty, may be punished."

5.  The applicant completed an Introductory Preaccession Interview Form on 14 April 2004.  Under Section III - Questions, he marked "Yes" for Question 5:  "Have you told your Service counselor everything about any problems you have had with law enforcement agencies?"  He marked "No" for Question 12:  "Did anyone tell you to hide any information or lie about TRAFFIC TICKETS, JUVENILE OR ADULT CONVICTIONS, POLICE RECORD (SEALED OR STRICKEN)?"  He signed Section IV - Individual Certification of Understanding of this form and acknowledged that he was aware that immediately after receiving the oath of enlistment, Article 83 [Fraudulent Enlistment - Procures his/her own enlistment in the Armed Forces by knowingly providing false representation or deliberate concealment as to his/her qualification for enlistment and receives pay or allowances thereunder…maximum punishment is Dishonorable Discharge, Forfeiture of Pay and Confinement for 2 years] of the Uniform Code of Military Justice applied.

6.  The applicant enlisted in the Regular Army on 14 April 2004.  His discharge packet is not available.  However, his DD Form 214 shows he was discharged on 30 April 2004 under the provisions of Army Regulation 635-200, chapter 7, section IV, by reason of fraudulent entry with an uncharacterized entry-level status discharge.  He had completed 17 days of active military service.

7.  His DD Form 214 shows he was given an RE code of RE-3 and a separation program designator (SPD) code of "JDA" (Fraudulent Entry).  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry "Fraudulent Entry."

8.  Army Regulation 635-5-1 (SPD 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 shows that the separation program designator "JDA" as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as "Fraudulent Entry" and that the authority for discharge under this separation program designator is "AR 635-200, Chapter 7."  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE code 3 as the proper reentry eligibility code to assign to Soldiers separated for this reason.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 7, paragraph 7-17, of that regulation provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.

10.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE–3 applies to persons not qualified for continued Army service but the disqualification is waivable.

11.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, the applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, chapter 7, for fraudulent entry is presumed to have been administratively correct and in conformance with applicable regulations.

2.  Records show the applicant was discharged with a separation code of "JDA" (Fraudulent Entry) and was assigned an RE code of RE-3 in accordance with the governing regulation in effect at the time.

3.  The applicant's contentions are noted.  However, there is no evidence of record which shows that the applicant fraudulently enlisted with the assistance of a recruiting official or counselor.  During the enlistment processing, the applicant completed an Introductory Preaccession Interview Form and indicated that no one had told him to hide any information or lie about traffic tickets.  Without the discharge packet, it cannot be determined if he was separated for failing to inform the Army about a traffic offense or for some other reason.

4.  The applicant has failed to show through the evidence submitted or the evidence of record that the separation code, the RE code, or the narrative reason issued to him was administratively incorrect, in error, or unjust.

5.  Based on the facts in this case and the evidence provided, it was determined that no formal hearing was required.

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.



      _________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)                                         AR20080013154





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080013154



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1