IN THE CASE OF:	

		BOARD DATE:	20 August 2009  

		DOCKET NUMBER:  AR20090005055 


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 reconsideration of his request that the narrative reason for his separation be changed. 

2.  The applicant states, in effect, certain evidence (e.g., material witness affidavits, forensic evaluations, personal statements, etc.) went unrefuted by the Army Board for Correction of Military Records (ABCMR) despite the fact that such evidence was relied upon by the Board.

   a.  He states paragraphs 1, 6, 7, and 10 of the Consideration of Evidence in the ABCMR Record of Proceedings discuss both law and facts that would reasonably and justly permit correction of the record based on what is now known and recognized as a service-related affliction (i.e., post-traumatic stress disorder (PTSD)).  He adds that the Board should accept this evidence and acknowledge there was an affliction of real, service-connected PTSD.

	b.  He states that based on the presumption of his sound condition at the time of his enlistment, and in light of no less than 90 days active duty and wartime service during the Vietnam-era, his service records should be corrected to show he had PTSD connected to honorable wartime service.

   c.  He states that the Board’s own references (i.e., paragraphs 9 and 10) "show that although the alleged ‘concealment’ of a juvenile arrest could or ‘may’ result in honorable discharge - this was not mandatory (other young Viet[nam]-era Army personnell [sic] in similar situations - i.e., my peers, were frequently not subjected to an involuntary discharge, even where alleged ‘concealment’ of juvenile arrest record occurred with them).  It was inconsistent."

	d.  The applicant states he was the target of mistreatment and anti-Semitism, inconsistent explanations by the military staff at the time, and the separation process was both capricious and arbitrary.

	e.  He concludes by stating that correcting the record to acknowledge he apparently suffered the affliction of PTSD as a result of his honorable, wartime military service is just, fair, accurate, and within the regulatory criteria. 

3.  The applicant provides no additional documentary evidence in support of his request for reconsideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080011366 on 21 October 2008.

2.  The original case described the applicant's brief, December 1974 to March 1975, service and his separation with a general discharge for fraudulent entry by concealing a prior arrest.  It also identified and attached his submitted evidence that included an affidavit from his mother to the effect that his juvenile arrest record had been waived by the recruiter, that he had acquired significant interpersonal aggression and other behavioral and emotional problems as a result of his military service during the "Vietnam War," and that he was serving an unjust life sentence for an alleged offense.   A 2007 letter from a Diplomat in Clinical Social Work mentioned that the applicant had been diagnosed with PTSD by a forensic psychologist.  

3.  The Discussion and Conclusions section of that decision states: 

1.  The applicant’s contentions were noted.  However, evidence of record shows he concealed an arrest record on his enlistment contract.

   2.  The applicant’s narrative reason for separation was administratively 	correct and in conformance with applicable regulations at the time of his 	separation.

4.  The applicant contends that the previous Board decision did not adequately address or properly weigh his evidence and contentions, including that:  Army separation policy was inconsistent, capricious, and arbitrary because his peers were not subjected to an involuntary discharge even though concealment of a juvenile arrest record occurred with them; he was the target of mistreatment;
anti-Semitism; and inconsistent explanations by military staff at the time.  These constitute new argument that requires Board reconsideration.  Additionally, his contentions about PTSD imply that PTSD caused the discharge and that PTSD should be shown in his military health record.  These are new arguments that should be addressed.    

5.  A DA Form 3286 (Statements for Enlistment) was completed by the applicant as part of his enlistment processing, prior to him entering military service.

   a.  Part II (Statement of Law Violations and Previous Conditions), in pertinent part, contains the statement, "[t]his statement is to be a complete and accurate list of all law violations and offenses (including minor traffic violations or offenses) for which you have been arrested, cited, charged, or held (regardless of subsequent disposition of your case) by civil law enforcement officials, or for which you were referred to juvenile court or juvenile probation officials."

   b.  Item Number 3 (Have you ever 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?) shows the applicant answered by entering the word, "NO."

	c.  This document contains the statement, "I have read and understand the meaning of all statements contained in Parts I through V of this form and agree to all conditions set forth therein.  I certify that all answers to questions, statements and entries on this form are true, correct and complete and that the Recruiter/ Career Counselor has informed me that should I intentionally conceal any information required above, I may later be subject to disciplinary action or discharge upon its discovery.  I explicitly understand that Part III - Acknowledgement of Understanding of Service Requirements applies to me, if I have not previously discharged my lawful military service obligation."

   d.  This document also shows the applicant placed his signature on the form on 25 September 1974 and it was witnessed by the U.S. Army field recruiter.

6.  A DD Form 398 (Statement of Personal History) was completed by the applicant as part of his enlistment processing, prior to him entering military service.



   a.  In response to Item 18 (Have you ever been detained, held, arrested, indicted or summoned into court as a defendant in a criminal proceeding, or convicted, fined, or imprisoned or placed on probation, or have you ever been ordered to deposit bail or collateral for the violation of any law, police regulation or ordinance (excluding minor traffic violations for which a fine or forfeiture of $25, or less was imposed)?  Include all court-martials while in military service.  If "Yes," list the date, the nature of the offense or violation, the name and location of the court or place of hearing and the penalty imposed or other disposition of each case.), the applicant answered by entering the word, "NO."

   b.  This document contains the statement, "I certify that the entries made by me above are true, complete, and correct to the best of my knowledge and belief and are made in good faith.  I understand that a knowing and willful false statement on this form can be punished by fine or imprisonment or both (See U.S. Code, title 18, section 1001)."
   
   c.  This document also shows the applicant placed his signature on the form on 30 September 1974.

7.  A DD Form 373 (Consent, Declaration of Parent or Legal Guardian), dated
30 September 1974, shows, in pertinent part, that Mrs. Barbara Jean (F_______) W_______ acknowledged with her signature that she thoroughly understood and consented to the applicant’s enlistment in the Regular Army (RA) for a period of
4 years.  This document also shows it was witnessed by the U.S. Army recruiter.

8.  The applicant enlisted and entered active duty in the Regular Army (RA) for a period of 4 years on 3 December 1974.

9.  A background investigation revealed that the applicant concealed prior civil arrests for possession of marijuana, operating a vehicle without a driver’s license, and breaking and entering.  

10.  On 27 February 1975, the company commander recommended the applicant be eliminated from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-38, for fraudulent entry into the Army by concealing previous civil convictions.

11.  On 6 March 1975, the applicant acknowledged with his signature that he was advised by the captain serving as defense counsel of the basis for his contemplated discharge and its effect pursuant to Army Regulation 635-200, paragraph 5-38.

12.  On 13 March 1975, the separation authority approved the discharge under the provisions of Army Regulation 635-200 based on concealment of arrest record and directed the applicant be issued a General Discharge Certificate. Accordingly, the applicant was discharged on 21 March 1975.

13.  On 13 July 1976, the Army Discharge Review Board (ADRB) determined that the applicant was properly discharged.  The ADRB also concluded the applicant’s character of service should be changed to honorable.  On 19 August 1976, The Adjutant General of the Army issued new separation documents to the applicant.

14.  The applicant’s DD Form 214 (Report of Separation from Active Duty) shows he entered active duty on 3 December 1974 and was honorably discharged on 21 March 1975 for concealment of arrest record.  At the time he had completed
3 months and 19 days of net active service, total active service, and total service for pay.

15.  There is no evidence in the applicant’s records that shows he served in a combat theater of operations or that he encountered any other physical or emotionally traumatic event or situation.

16.  There is no evidence in the applicant’s records that shows he was found unfit because of physical disability to reasonably perform his duties.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this Army regulation, in pertinent part, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

18.  Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 (Separation for Convenience of the Government), paragraph 5-38, provided, in pertinent part, that enlisted personnel who concealed an arrest record which did not result in civil court 


conviction at the time of enlistment or induction might be discharged.  Individuals discharged under this paragraph would be given an honorable discharge or a general discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his request to change the narrative reason for his separation should be reconsidered because certain evidence went unrefuted by the Board; Army separation policy was inconsistent, capricious, and arbitrary because his peers were not subjected to an involuntary discharge even though concealment of a juvenile arrest record occurred with them; he was the target of mistreatment, anti-Semitism, and inconsistent explanations by military staff at the time; and he suffered the affliction of PTSD as a result of his honorable, wartime military service.

2.  The applicant’s contentions, along with the documentary evidence provided in his original request (i.e., material witness affidavits, personal statements, and records) were thoroughly reviewed and reconsidered.  This includes:

   a.  there is no evidence of record, and the applicant provides insufficient evidence, to support his claim that the Army separation policy was inconsistent, capricious, and arbitrary because his peers were not subjected to an involuntary discharge although concealment of juvenile arrest records occurred with them;

   b.  there is no evidence of record, and the applicant provides insufficient evidence, to support his claim that he was the target of mistreatment, anti-Semitism, and/or inconsistent explanations by military staff at the time; and

   c.  there is no evidence the applicant served in a combat/wartime theater of operations or suffered any other traumatic event or circumstance.  There is also no evidence of record, and the applicant provides insufficient evidence, to support his claim that he suffered the affliction of PTSD as a result of his honorable, wartime military service at the time of his discharge.  Moreover, there is no evidence the applicant had any disqualifying mental or physical defects sufficient to warrant disposition of the applicant through medical channels either prior to or at the time of his discharge.

3.  Records show that on at least two occasions prior to his enlistment in the RA, on official documents that were directly related to his enlistment processing, the applicant denied that he had any prior civil arrests.  In addition, the applicant certified that all answers to questions, statements, and entries on the forms were true, correct, and complete and he acknowledged that the Recruiter/Career Counselor had informed him that should he intentionally conceal any information required, he may later be subject to disciplinary action or discharge upon its discovery.  Moreover, the applicant placed his signature on these documents despite warnings against making false statements.

4.  The evidence of record shows that subsequent to the applicant’s enlistment in the RA, a background investigation revealed that the applicant concealed prior civil arrests for possession of marijuana, operating a vehicle without a driver’s license, and breaking and entering.

5.  The evidence of record confirms that the applicant’s separation on 21 March 1975, under the provisions of Army Regulation 635-200, paragraph 5-38, for fraudulent entry into the Army by concealing previous civil arrests was administratively correct, in compliance with all requirements of law and applicable regulations, the rights of the applicant were fully protected throughout the separation process, and his discharge was proper.  In addition, records show that as a result of a review by the ADRB in 1976, the reason for the applicant’s discharge was affirmed and his character of service was upgraded to honorable. Therefore, considering all the facts of the case, it is concluded that the narrative reason for the applicant’s discharge is correct and appropriate.

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 this requirement.  Therefore, there is no basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080011366, dated 21 October 2008.



      _______ _   _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)                                         AR20090005055



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ABCMR Record of Proceedings (cont)                                         AR20090005055



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