IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014001 


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, in effect, change of the authority and reason for his discharge.

2.  The applicant states, in effect, that he did not fraudulently enter the Army and that his record should be corrected accordingly.  He further states, in effect, he needs his records corrected for a disability claim.

3.  The applicant provides no 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. The applicant’s military records include a DA Form 3286 (Statement for Enlistment) that he completed during his enlistment process.  Part II (Statement of Law Violations and Previous Conditions) contains the question “Are you now or have you ever been on parole, probation supervision, under suspended sentence, or are you awaiting final action on charges against you?”  The applicant answered “NO” to this question and he authenticated this document with his signature on 10 June 1974.

3.  The applicant’s military record shows he enlisted in the Regular Army (RA) on 11 June 1974.  During his initial entry training, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 2 August 1974 through 24 August 1974.

4.  On 18 September 1974, the Chief, Security Division, Headquarters U.S. Army Training Center, Infantry, Fort Polk, LA alerted the Commander, 1st Brigade, Fort Polk, that the applicant was identified as a fraudulent entry into the Army on an Entrance National Agency Check (ENTNAC) summary received.  This summary showed that the applicant was arrested or charged on the following dates and places for the offense(s) indicated:  18 March 1974, Key West, FL, possession of a stolen automobile and no valid driver’s license; and 22 March 1974; Key West, for possession of a stolen automobile.

5.  On 26 September 1974, the applicant received notification from his commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5, paragraph 5-38, for concealment of a felony arrest record. Having been advised of the basis for his contemplated separation and its effects, he elected to submit a statement in his own behalf.

6.  In his statement, dated 26 September 1974, the applicant indicated that his recruiter told him he did not have to worry about the charges because he did not get a sentence.  He also stated that he used a friend’s car in Philadelphia, PA to travel to Key West, where he was placed in jail for possession of a stolen vehicle. He further stated that he went to court four times for the same thing within a month.  He states he was dismissed because they could not prove he stole the car.  He further states he would like to stay in the Army for at least 4 more years and that he believed he could make if it he tried harder.

7.  On 9 October 1974, the appropriate separation authority approved the applicant’s separation and directed that he receive a general, under honorable conditions discharge (GD) under the provisions Army Regulation 635-200, chapter 5, by reason of fraudulent entry.  On 1 November 1974, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant on the date of his discharge confirms that he was discharged under the provisions of Army Regulation
635-200, chapter 5, by reason of fraudulent entry.  It also shows that at the time of his discharge, he had completed 4 months and 21 days of active military service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge or change to the authority and reason for his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200, chapter 5, paragraph 5-38, in effect at the time, prescribed the procedures for the separation processing of Soldiers who concealed their arrest record upon entry on active duty.  It also provided guidance on the administrative disposition of enlisted personnel found to have fraudulently entered the Army in violation of the UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his record should be corrected to show he did not fraudulently enter the Army because his recruiter told him not to reveal his arrest record since he did not get a sentence was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The ENTNAC summary provided to the applicant’s commander at the time confirmed that he had been arrested on two separate occasions.  Further, the applicant admitted to withholding information concerning his prior arrest record during his enlistment processing, as confirmed by the DA Form 3286 contained in his military record.  Given the applicant failed to provide the appropriate officials with information that may have made him ineligible for acceptance into the Army, he entered the Army under false pretenses and therefore he was discharged accordingly.

3.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the Army policy in effect at the time.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout his separation process.  Absent any evidence of an error or injustice in his separation processing, there is an insufficient evidentiary basis to grant the requested relief.

4.  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.

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)                                         AR20090014001



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ABCMR Record of Proceedings (cont)                                         AR20090014001



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