IN THE CASE OF:	  
		BOARD DATE:	  April 14, 2009

		DOCKET NUMBER:  AR20090000508 


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 and upgrade of his discharge and applicable benefits.

2.  The applicant states that upon enlistment, his recruiter told him to seal his juvenile record, and that the recruiter filled out all the forms for his enlistment indicating that he had not previously been in trouble.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 27 December 1976.  He completed basic combat training at Fort Leonard Wood, MO, and proceeded to Fort McClellan, AL, to attend advanced individual training for military occupational specialty 95B (Military Police).

3.  On 6 April 1977, during a counseling session with his immediate commander, the applicant admitted to committing the civilian charges of assault and the issuance and uttering of worthless checks – charges that he did not disclose on his enlistment contract.  He further indicated that his recruiter was aware of these charges and that the recruiter told him not to disclose them on his application for enlistment.

4.  On 12 April 1997, the applicant’s immediate commander notified him of initiation of separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct, fraudulent entry.

5.  On 12 April 1977, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life.  He further indicated that at the time of his enlistment, his recruiter was aware of the circumstances and elected to submit a statement of his recruiter's knowledge of those circumstances.  He further elected not to submit a statement on his own behalf.

6.  On 12 April 1977, the applicant's immediate commander initiated a recommendation for the elimination of the applicant from the Army under the provisions of chapter 14 of Army Regulation 635-200 for misconduct-fraudulent entry (concealment of conviction by civil court).  The immediate commander further indicated that the applicant's performance during the Military Police training course had been poor and that the applicant did not desire retention in the Army.

7.  On 21 April 1977, the applicant's intermediate commander recommended approval of the discharge and on 28 April 1977 his senior commander also recommended approval of the discharge.

8.  On 4 May 1977, an assistant Adjutant General of the U.S. Army Training Brigade, U.S. Military Police School, Training Center and Fort McClellan, Fort McClellan, AL, indicated by endorsement that the applicant's release from military control by reason of voided enlistment was directed in accordance with paragraph 14-12g of Army Regulation 635-200 and that the character of his service was honorable.  Accordingly, the applicant was discharged on 10 May 1977.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged in accordance with paragraph 14-12g of Army Regulation 635-200 with no character of service.  This form further confirms that the applicant was not credited with completion of any active military service.

9.  There is no indication in the applicant's records that he applied to the Army Discharge Review Board for a review of his discharge within that Board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the policies and procedures for enlisted separations from the Army.  Chapter 14 of the regulation in effect at the time established the policy and prescribed procedures for the elimination of personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts of misconduct.  Action will be taken to separate a member for misconduct-fraudulent entry.  Some examples of fraudulent entry are concealment of a record as a juvenile offender and concealment of a conviction by civil court.  A member discharged under the provisions of this chapter will be furnished an honorable, a general, or an under other than honorable conditions discharge certificate.  The character of service will be based on in-service records and activities.  The offense of a fraudulent enlistment occurs when the member accepts pay or allowances following enlistment procured by willful and deliberate false representation or concealment of his qualifications.  Thus, upon receipt of pay and allowances, it becomes an in-service activity by the individual and may be considered in characterization his period of service, even though the member is not tried for these offenses.  The DD Form 214 will be prepared and distributed in accordance with Army Regulation 635-5 (Separation Documents) on all individuals released from custody and control due to voided service, to include voidance due to fraudulent enlistment/reenlistment with improper conduct by recruiting officials.  In addition to other items normally completed in preparing the DD Form 214, the following entries will be made:  item 9a (Type of Separation) shows "Release from Military Service"; item 9c (Authority and Reason) shows the appropriate paragraph of Army Regulation 635-200; items 9e (Character of Service) and 9f (Type of Certificate Issued) show the entry "NA"; and item 18 (Record of Service) shows "0."



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contends that his discharge should be upgraded to honorable with entitlement to benefits.

2.  The evidence of record shows that upon enlistment in the Regular Army, the applicant concealed a juvenile offense and/or a conviction by civil court.  Accordingly, his immediate commander initiated separation action against him for fraudulent entry.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.

3.  Even though the applicant should have been furnished an honorable discharge certificate, per Army Regulation 635-200 in effect at the time of his discharge the character of service for an individual discharged under paragraph 14-12g was not applicable and "NA" was therefore correctly shown on his DD Form 214.  Additionally, since his enlistment was voided as a result of his fraudulent entry, he was not credited with any period of active service and his DD Form 214 correctly shows a zero record service.  There is neither an error nor an injustice.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090000508



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ABCMR Record of Proceedings (cont)                                         AR20090000508



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