IN THE CASE OF:	  

		BOARD DATE:	        15 JANUARY 2009

		DOCKET NUMBER:  AR20080016558 


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 item 24 (Character of Service), item 25 (Separation Authority), item 26 (Separation Code), item 27 (Reenlistment [RE] Code), and item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued to her on 12 June 1989, which will simply be referred to as her DD Form 214 throughout the remainder of these proceedings, be changed. 

2.  The applicant essentially states that her discharge for fraudulent entry is in error or unjust because her recruiter failed to fill out the proper paperwork.   

3.  The applicant provides her DD Form 214 in support of this 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 military records show that she served in the Regular Army from 23 October 1985 to 17 October 1988, then was transferred to the United States Army Reserve.  On 30 May 1989, the applicant again enlisted in the Regular Army.  Item 27 (Relatives) of her DD Form 1966-series (Record of Military Processing – Armed Forces of the United States) essentially shows that she had no children at the time.  The applicant authenticated her DD Form 1966-series with her signature in item 40 (Certification of Applicant).  By signing this item, the applicant authenticated the following statement:  "I certify that the information given by me in this document is true, complete, and correct to the best of my knowledge and belief.  I understand that I am being accepted for enlistment based on the information provided by me in this document: that if any of the information is knowingly false or incorrect, I could be tried in a civilian or military court and could receive a less than honorable discharge which could affect my future employment opportunities."  The applicant's recruiter also certified a statement which essentially stated that she understood her liability to trial by court-martial under the Uniform Code of Military Justice should she effect or cause to be effected the enlistment of anyone known by her to be ineligible for enlistment.  

3.  The applicant's military records also essentially show that the applicant informed her chain of command on 31 May 1989 that she withheld information during her recent enlistment processing, and that she withheld the fact that she had a son because she did not have his birth certificate at the time of her enlistment.  They also contained a copy of her son's birth certificate, which shows that her son was born on 16 December 1988.  It should be noted that the applicant indicated in her last enlistment contract that she did not have a spouse at the time.

4.  On 1 June 1989, the applicant commanding officer notified her of his intentions to initiate action to effect her separation from the United States Army under the provisions of paragraph 7-17 (Fraudulent Entry), Army Regulation 
635-200 (Enlisted Personnel).  She was also advised of her rights.

5.  On 2 June 1989, the applicant acknowledged that she had been advised by consulting counsel of the basis for the contemplated action to separate her for fraudulent enlistment under the provisions of paragraph 7-17, Army Regulation 635-200 and its effects, of the rights available to her, and the effect of any action taken by her in waiving her rights.  She waived consideration of her case and personal appearance before an administrative separation board, and elected not to submit statements in her own behalf.  She also waived consulting counsel, and understood that she would be ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge.

6.  On 7 June 1989, the proper separation authority approved the applicant's discharge under the provisions of paragraph 7-17, Army Regulation 635-200, and essentially directed that her characterization of service would be uncharacterized.  

7.  On 12 June 1989, the applicant was discharged accordingly.  Item 24 of her DD Form 214 has an entry of "Uncharacterized," and item 25 has an entry of "[Army Regulation] 635-200 [paragraph] 7-17b (8)."  Item 26 of this document has an entry of "JDA," and item 27 has an entry of "RE-3.".  Item 28 of this document also has an entry of "Fraudulent entry."

8.  In a letter, dated 17 August 1993, the Army Discharge Review Board essentially informed the applicant that her appeal had been denied, and that her discharge was determined to be both proper and equitable.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 7, paragraph 7-17, of that regulation provided, 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.  Soldiers separated under this chapter may be awarded an honorable discharge, a general discharge, or a discharge under other than honorable conditions.  The characterization will be uncharacterized if a Soldier was in an entry level status.  For Regular Army Soldiers, entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service.

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the United States 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 Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

11.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

12.  An SPD code of "JDA" applies to persons who are discharged for fraudulent entry under the provisions of Chapter 7, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 3 is the applicable 
RE code assigned for individuals separated for fraudulent entry.  An RE code of 3 indicates that the applicant was separated from her last period of service with a disqualification which did not qualify her for continued Army service, but that the disqualification is waivable for reentry into the service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that items 24, 25, 26, 27, and 28 of her DD Form 214 should be changed.

2.  The applicant's DD Form 1966/2, completed in conjunction with her enlistment on 30 May 1989, shows that she failed to disclose her child.  The question is quite clear in that it asks potential enlistees if they have any children.  Contrary to the applicant's contention, there is no evidence which suggests that she informed her recruiter that she had a child, or that her recruiter advised her to answer "None" to this question even if she had children.

3.  It is clear that the applicant fraudulently enlisted in the Regular Army when she failed to disclose that she had a son on her enlistment contract.  It is also clear that she was issued an uncharacterized discharge as a result of her fraudulent entry into the Regular Army.  As she did not provide any evidence which shows that any requirements of law and regulation were not met, or that her rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's uncharacterized discharge accurately reflects her record of service from 30 May 1989 to 12 June 1989.

4.  The applicant's RE code is based on her reason for discharge and cannot be changed unless her narrative reason for discharge is changed.  Her narrative reason for discharge and SPD code were based on her fraudulent entry, and there is insufficient basis upon which to change this reason.  Additionally, as she was in an entry level status at the time, her characterization of service was appropriately determined to be uncharacterized, and there is no basis for changing her narrative reason for separation.  
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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case. 

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.




      _______ _ XXX  _______   ___
               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)                                         AR20080016558



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ABCMR Record of Proceedings (cont)                                         AR20080016558



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