BOARD DATE:	3 December 2009  

		DOCKET NUMBER:  AR20090011532 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that he was advised that after 6 months after discharge he could request an upgrade of his general discharge to an honorable discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 7 November 1985, the applicant enlisted in the Regular Army (RA) in Charlotte, NC, for 3 years, in pay grade E-1.  At the time, he completed a DD Form 1966/5 (Record of Military Processing – Armed Forces of the United States).  Item 36 asked him to list any involvement with police or judicial authorities.  It warned him, “Your answers to the following questions will be verified with the Federal Bureau of Investigation (FBI) and other agencies to determine any previous records of arrest or convictions or juvenile court adjudications.  If you conceal such records at this time, you may, upon enlistment, be subject to disciplinary action and/or discharge/separation from the military service with other than an honorable discharge.”  He listed several, mostly traffic, offenses.  No serious offenses were listed.

3.  On 25 February 1986, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 7 for fraudulent entry.  A Federal Bureau Investigation (FBI) report contained in the applicant's records show that prior to his enlistment in the RA, he was convicted, pursuant to his plea, of possession of 100 units of Diazepam.  He was sentenced to serve 18 to 24 months in the county jail, suspended for 5 years, upon his payment of a $500.00 fine and court costs.  He was also ordered to serve under supervised probation for 3 years, to pay a monthly probation supervision fee of $10.00 and to complete high school.  Noted on the FBI report was the statement "AR 601-210 [Active and Reserve Components Enlistment Program] defines wrongful possession as a felony" and that the applicant required a waiver.

4.  The applicant acknowledged receipt of the notification on 26 February 1986 and he elected to submit a statement in his own behalf.  In his statement, the applicant contended that when the recruiter came to his house for him to sign the necessary papers for his enlistment, he and his mother sat down with the recruiter to "go over" the papers.  He stated that his police record was included in the papers and that he was told by the recruiter that since his drug conviction was not recorded on his police record, his entry into the Army would not be any problem.  According to the applicant, he was instructed by his recruiter not to say anything about his prior drug conviction because it was not recorded on his police record.  The applicant also submitted a request to be allowed to remain on active duty in the Army.

5.  On 10 June 1986, the applicant's request to remain on active duty was denied by the Commander, Military Personnel Center.

6.  On 19 June 1986, the appropriate authority approved the recommendation for discharge.  Accordingly, on 24 June 1986, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 7-17b, due to fraudulent entry.  He had completed 7 months and 18 days of net active service this period and he was furnished a General Discharge Certificate.

7.  A review of the available records does not show that the applicant ever petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 7, paragraph 7-17, of that regulation provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions.

9.  Paragraph 3-7a of Army Regulation 635-200 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.  

10.  Paragraph 3-7b of Army Regulation 635-200 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 contends that his general discharge should be upgraded to an honorable discharge.

2.  The applicant's contentions were carefully considered; however, evidence of record shows the applicant concealed information pertaining to his civil conviction prior to his enlistment.  Although he contends that he was told by his recruiter to conceal his civil conviction, he clearly knew prior to his enlistment that he had a civil conviction, which made the contract between him and the Army fraudulent.  Based on the applicable regulation, it appears that the character of his service is correct.

3.  The fact that the applicant was advised that he was allowed to apply for an upgrade of his discharge is not a sufficient justification to warrant the relief requested.

4.  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 has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20090011532



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ABCMR Record of Proceedings (cont)                                         AR20090011532



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