IN THE CASE OF:	

		BOARD DATE:	21 July 2009  

		DOCKET NUMBER:  AR20090001942 


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 his military records be corrected to show his voided enlistment as creditable service and that he be issued either an honorable or a general discharge.

2.  The applicant states he first enlisted in the U.S. Marine Corps (USMC) but then decided he would rather be in the Army.  He states the recruiter told him to go ahead and enlist in the Army and that the waiver would be granted.

3.  The applicant provides no additional evidence or official documentation in support of his 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.  A Federal Bureau of Investigation (FBI) form, dated 13 December 1977, shows the applicant was arrested for grand theft on 13 August 1975 in Lebanon, OH and on 12 April 1977 in Dayton, OH.  The form shows there were no charges preferred in the Dayton, OH arrest.

3.  A Defense Investigative Service (DIS) form, dated 24 January 1978, shows that on 11 April 1975, the applicant was arrested for possession of a hallucinogen (marijuana).  On 6 August 1976, he pled guilty and on 4 September 1976 he was sentenced to 30 days in the workhouse and fined $100.00.  The 
30 days in the workhouse was suspended on condition of future good behavior and payment of the fine.

4.  A DIS form, dated 13 February 1978, provided the following information:

	a.  on 13 August 1975, the applicant was arrested for grand theft;

	b.  on 11 December 1975, the applicant entered a plea of guilty to the crime of petty theft, valued at less than $150.00, a misdemeanor of the first degree;

	c.  on 14 January 1976, the applicant was sentenced to the Warren County Jail for 6 months and fined $500.00, plus $55.10 court costs.  The 6 months jail term and $400.00 of the fine were suspended and he was placed on probation for 1 year.  He was also charged with $200.00 for cost of the court; 

	d.  on 6 January 1977, the court was advised that the balance of court costs in the amount of $330.10 remained to be paid and the applicant's probation period was extended until such time as he completes payment of such court costs; and

	e.  on 7 February 1978, the applicant's probation officer was interviewed and he advised that the applicant was technically on probation until he paid his court costs.  He advised that the applicant was not actively supervised and was allowed to enter military duty.  He also advised that the applicant was no longer under court orders to pay counsel fees of $200.00 and he now owed the court  $130.00.

5.  On 3 February 1978, the applicant completed a DD Form 1966 (Application for Enlistment - Armed Forces of the United States).  In his application he listed three offenses he was arrested for: grand theft (charges dropped), speeding ($25.00 fine), and shoplifting (no charges filed).



6.  On 6 February 1978, the applicant enlisted in the Regular Army (RA) for a period of 4 years.

7.  On 7 March 1978, the applicant's commander was notified that the applicant had concealed disqualifying information which would have required a waiver upon entry into the service.

8.  On 15 March 1978, the applicant's commander submitted a recommendation, with 13 enclosures, that the applicant to be discharged under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of fraudulent enlistment - concealment of conviction by civil court.  The commander commented that the applicant had been an average trainee during his four weeks in the unit.  However, the commander stated the applicant's performance to date did not justify retention in the service.

9.  The commander's letter notifying the applicant the commander was  processing him for discharge and the applicant's letter of acknowledgement are listed as Enclosures 11 and 12 to the commander's letter recommending him for discharge.  However, these documents were not available for review.

10.  The applicant's first intermediate commander stated the applicant appeared to be a poor risk with a high disciplinary problem potential and recommended approval for discharge.  The applicant's senior intermediate commander recommended him for retention.

11.  On 17 April 1978, the appropriate authority directed orders to be issued to void the applicant's enlistment contract under the provisions of chapter 14 of Army Regulation 635-200 by reason of the applicant having concealed civil convictions.

12.  On 25 April 1978, the applicant was released from the custody and control of the Army and his period of service was voided.  His DD Form 214 (Report of Separation from Active Duty) reflects no active service because of his voided service.

13.  The applicant applied to the Army Discharge Review Board (ADRB) to change his voided enlistment to creditable service and to be issued an honorable or general discharge.  On 15 February 1996, the ADRB reviewed and denied the applicant's request.  The ADRB determined that the applicant's voided enlistment and release from military control was proper and equitable.  

14.  Army Regulation 601-210 (Regular Army Enlistment Program), then in effect, provided that persons under civil restraint, such as probation, were not eligible for enlistment and not eligible for a waiver.  However, if the probation was unsupervised and unconditional, a waiver of this disqualification may be granted for enlistment.  In addition, this regulation provided that persons convicted in civil court of one or more misdemeanors required a waiver of moral standards to determine enlistment eligibility.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel on active duty.  Chapter 14 contained the policy and outlined the procedures used in separating individuals for fraudulent entry.  It provided, in pertinent part, that fraudulent entry was the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection.  Any incident which met the foregoing may be cause for discharge for fraudulent entry.  Commanders exercising general court-martial jurisdiction were authorized to void a fraudulent enlistment when the service of the member is of too short duration to properly apply establishment standards for award of an honorable, general, or an under other than honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant clearly failed to include the civil convictions for possession of marijuana and petty theft on his application for enlistment.  Based on the interview with the applicant's probation officer, it appears the applicant was still on probation at the time of his enlistment due to his unpaid court costs.

2.  The applicant was required to pay the court costs in order to be released from probation by the court.  This indicates his probation was not unconditional.  At the time of his application for enlistment he still owed $130.00 to the court.  Therefore, if this information had been available at the time of his application for enlistment he could have been rejected.  

3.  Based on the applicant's two civil convictions for misdemeanors, he would have required a waiver of moral standards prior to being enlisted in the Army.  Therefore, if this information had been available at the time of his application for enlistment he may have been rejected.  

4.  The applicant had only 2 months and 10 days of active service.  It is clear the service of the applicant was of too short a duration to properly apply establishment standards for award of an honorable or general discharge.  Therefore, the commander exercising general court-martial jurisdiction properly voided the applicant's enlistment and released him from the control of the Army.

5.  Evidence shows that the applicant was properly and equitably released from military control in accordance with regulations in effect at the time.  The reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

6.  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 that 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)                                         AR20090001942



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ABCMR Record of Proceedings (cont)                                         AR20090001942



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