IN THE CASE OF:	  

		BOARD DATE:	  30 June 2009

		DOCKET NUMBER:  AR20090004061 


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 general discharge be upgraded to honorable. 

2.  The applicant states that he did not enter the Army under fraudulent conditions nor did he have any misconduct.  He contends that his recruiter was made aware of his circumstances.

3.  The applicant provides no additional documentary evidence 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.  On 16 March 1979, the applicant pled guilty to the charge of burglary in Jackson County, Illinois.  In June 1979, unrelated charges of burglary, criminal damage to property, and theft were dismissed against the applicant.     

3.  Item 36a (Have you ever been arrested, charged, cited (including traffic violations) or held by any law-enforcement or juvenile authorities in the United States or in a foreign country regardless of whether the citation or charge was dropped or dismissed or you were found not guilty?) on the applicant’s enlistment record shows he marked “No.”  He enlisted in the Regular Army on 30 July 1980 for a period of 4 years.  He was awarded military occupational specialty 51R (electrician).
 
4.  On 5 August 1981, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to fraudulent entry (concealment of conviction by civil court).  

5.  On 5 August 1981, the applicant consulted with counsel.  He requested retention in the military and elected to submit a statement in his own behalf.  In summary, he stated that due to a lack of maturity he made a mistake at age 
18 which followed him into his career.  He pointed out that his military file reflected outstanding performance which he intended to keep up until he was released form the Army and that his plans were to make a career in the Army.  

6.  The intermediate commanders recommended that the applicant be retained in the service.

7.  The separation authority disapproved the recommendations for retention.  He indicated that fraudulent entry had been verified and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14 and furnished a general discharge.
    
8.  Accordingly, the applicant was discharged with a general discharge on 
1 March 1982 under the provisions of Army Regulation 635-200, chapter 14, for misconduct (fraudulent entry).  He had served a total of 1 year, 7 months, and 
2 days of creditable active service.  

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200, chapter 14, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  The regulation provided, in pertinent part, for the separation of personnel for fraudulent entry into the Army.  Paragraph 14-4 of this regulation states that fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all conditions that would have been disqualifying without a waiver.  Concealment of conviction by civil court is an example of fraudulent entry.  

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he did not enter the Army under fraudulent conditions and that his recruiter was made aware of his circumstances, evidence of record shows he marked "No" to item 36a (Have you ever been arrested, charged, cited (including traffic violations) or held by any law-enforcement or juvenile authorities in the United States or in a foreign country regardless of whether the citation or charge was dropped or dismissed or you were found not guilty?) on his enlistment contract.   

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

BOARD VOTE:

____X___  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ___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)                                         AR20090004061





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ABCMR Record of Proceedings (cont)                                         AR20090004061



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