IN THE CASE OF:	  

		BOARD DATE:	       26 February 2009

		DOCKET NUMBER:  AR20080018186 


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 the name, Social Security Number (SSN), and date of birth (DOB) on his 20 August 1998 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect his real information.

2.  The applicant states that in 1984 he was discharged for being absent without leave (AWOL).  In 1990, with the invasion in Kuwait, he desired to again serve but thought he could not enlist because of that type of discharge, so he enlisted under an assumed name, SSN, and DOB.  He is again attempting to enlist and has been told that he can get in with fewer waivers if he can get his DD Form 214 changed.

3.  The applicant provides copies of his 1984 and 1998 DD Forms 214, four DA Forms 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)), a personal letter, a letter of support from his wife, and a letter of reference from a co-worker.

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 enlisted in the Regular Army on 15 July 1983 under the name R____ P____ C____, SSN XXX-XX-5094, and DOB 6 March 1966.  He completed training and was awarded the military occupational specialty 94B (Food Service Specialist).

3.  The applicant was AWOL for the periods 16-17 April 1984 and 23 April 1984 through 16 July 1984.

4.  On 7 September 1984, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.  He had 10 months of creditable service.

5.  On 16 January 1991, he enlisted in the Regular Army under the name M____ A____ D____, SSN XXX-XX-3984, and DOB 18 October 1971 as a private, E-1.

6.  He reenlisted under this name twice and was promoted to staff sergeant, E-6.

7.  The applicant's rater rated him as successful or better in all areas, with the senior rater rating him in the second block (successful with superior potential) on his last three NCOERs.

8.  On 20 August 1998, the applicant was discharged for fraudulent entry under Army Regulation 635-200, chapter 7, section V.  He was discharged under honorable conditions.  He was given a reentry eligibility code of 3.  The available record does not contain any information on how the Army discovered the identity fraud or any of the administrative or due process documentation related to this type of separation.

9.  His 1998 DD Form 214 lists his awards while serving under the name M____ A____ D____ as the Army Achievement Medal with one oak leaf cluster, the Good Conduct Medal (2nd award), the National Defense Service Medal, the Armed Forces Service Medal (4th award), the United Nations Service Medal, the North Atlantic Treaty Organization Medal, the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Army Service Ribbon, the Overseas Service Ribbon, the Joint Meritorious Unit Award, the Expert Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.  The block 18 (Remarks) includes a notation stating he had a prior period of service under the name and SSN of R____ P____ C____, 
XXX-XX-5094.

10.  The DD Form 214 shows he had 7 years, 3 months, and 8 days of creditable service with a period of lost time from 26 April 1998 through 20 August 1998.  The available record does not contain any information related to this period of lost time.

11.  The applicant's wife, a former Air Force airman, submits a letter stating that she has known the applicant for 5 years and is proud to be married to him.  She states he never hid his past errors and is willing to pay for consequences of his actions.  He is a man of great integrity and is extremely devoted to his family, work, and country.

12.  A coworker describes the applicant as a man with great loyalty, a trustworthy associate and friend who can be counted on.

13.  Army Regulation 635-200, chapter 7, section V, sets forth the policy and procedures for separation for fraudulent entry.  Fraudulent entry is the procurement of an enlistment, re-enlistment, 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 re-enlistment, might have resulted in rejection.  It states, in pertinent part, that a Soldier may be discharged under this chapter if the Soldier concealed that they had prior service or concealed their true name and/or SSN.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records), the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he is attempting to enlist and has been told that he can get in with fewer waivers if he can get his 20 August 1998 DD Form 214 changed.

2.  While the applicant served honorably for over 7 years, it was under a false name and SSN.  His command determined that it was in the best interest of the Army to discharge him.  While a correction of the 20 August 1998 DD Form 214 might assist the applicant in attempts to reenter the Army it might also hide the fact that he violated regulations and attempted to hide his identity.

3.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The information contained therein should reflect the conditions and circumstances that existed at the time the records were created and under which the military service was performed.  Therefore, the Board concludes that the name and SSN contained in the applicant's military records and on his 20 August 1998 separation document should not be changed.

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)                                         AR20080018186



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ABCMR Record of Proceedings (cont)                                         AR20080018186



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