IN THE CASE OF:	  

		BOARD DATE:	  25 June 2009

		DOCKET NUMBER:  AR20090003871 


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 undesirable discharge be upgraded to a general discharge.  

2.  The applicant states that he was attacked by another Soldier when he went from basic training to Fort Lee, VA and he received injuries to his arm.  

3.  The applicant provides no additional documents 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.  The applicant enlisted in the Regular Army (RA) on 12 June 1972 for a period of two years.  Part II (Statement of Law Violations and Previous Conditions) of 
his DA Form 3286 (Statements for Enlistment) shows he entered "No" in Block Number 3 indicating he had never been arrested, cited, charged or held by Federal, State, County, City or other law enforcement authorities or by juvenile, Court or Juvenile Probation Officials for any violation of any Federal Law, State Law, County or Municipal Law, Regulation or Ordinance.

3.  He was assigned to Fort Polk, LA for basic combat training in June 1972.  

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of his DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) on three separate occasions from 1 September 1972 to 29 September 1972, 18 October 1972 to 1 December 1972, and 8 December 1972 to 4 January 1973.  There is no record of nonjudicial punishment for these periods of AWOL.  

5.  Item 44 of his DA Form 20 also shows that he was in the hands of civil authorities (IHCA) on two separate occasions from 30 September 1972 to 2 October 1972 and from 2 December 1972 to 4 December 1972.

6.  The applicant's service personnel records contained a letter, dated 9 January 1973, from the U.S. Army Personnel Control Facility, U.S. Army Armor Center, Fort Knox, KY.  The letter indicated that information had been received by federal officials that the applicant had a record of conviction by civil authorities.  His offenses were listed as: (1) chronic truancy, (2) vandalism, and (3) breaking and entering.  This letter also indicated that he was confined from April 1968 to June 1968.  

7.  On 8 February 1973, the applicant’s unit commander notified him of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, based on misconduct - fraudulent entry due to concealment of a civil conviction at time of enlistment.  The applicant was advised of his rights.  

8.  On 8 February 1973, the applicant consulted with legal counsel, waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and did not submit statements in his own behalf.  

9.  On 2 March 1973, the separation authority directed that the applicant be discharged from the Army under the provisions of chapter 14, Army Regulation 635-200 by reason of fraudulent entry with issuance of an Undesirable Discharge Certificate.  

10.  Accordingly, the applicant was discharged on 13 March 1973 under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct - fraudulent entry.  He had 108 days of lost time due to AWOL and civil confinement.  

11.  On 24 October 1984, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.  

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include 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 or patterns of misconduct. Paragraph 14-5(1) states that the commander exercising general court-martial jurisdiction will void the fraudulent entry by issuing orders releasing the member from Army control for fraudulent entry.  A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions.    

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was attacked by another Soldier when he went from basic training to Fort Lee, VA and he received injuries to his arm.  However, there is no evidence of record to substantiate his claims.  

2.  The applicant was released from military service under the provisions of Army Regulation 635-200, chapter 14 for misconduct – fraudulent entry.  Prior to the applicant’s enlistment, he had been convicted by civil authorities for chronic truancy, vandalism, and breaking and entering.  However, when he completed and signed his enlistment contract he indicated he had never been arrested or convicted.

3.  In accordance with the regulation then in effect, instances of fraudulent entry due to concealment of conviction by civil court required commanders to release the member from Army control.  Therefore, the applicant was released from military service under the provisions of Army Regulation 635-200, chapter 14 for misconduct – fraudulent entry.  

4.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in this case were in error or unjust.  

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)                                         AR20090003871



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ABCMR Record of Proceedings (cont)                                         AR20090003871



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