IN THE CASE OF:	  

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090015384 


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

2.  The applicant states, in effect, that he did not receive a character of service and he would now like his discharge changed to a general discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 18 October 1979, in support of his request.

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 records show he enlisted in the Regular Army (RA) for a period of 4 years on 4 April 1979.  He was subsequently reassigned to Fort Knox, KY, for completion of training in military occupational specialty (MOS) 19D (Cavalry Scout).

3.  On 25 April 1979, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing some quantity of marijuana on or about 13 April 1979.  His punishment consisted of a forfeiture of $97.00 pay per month for one month (suspended for 60 days) and 14 days of extra duty.

4.  On 1 May 1979, the applicant was apprehended by military authorities and he was placed in pretrial confinement.  Also on this date, court-martial charges were preferred against him for two specifications of Article 90 (Assault or willfully disobeying a superior commissioned officer) and two specifications of Article 128 (Assault with intent to commit murder) of the UCMJ.  A copy of the charge sheet is not available for review with this case.

5.  On 3 May 1979, the unexecuted portion of the punishment to forfeiture of $97.00 pay was vacated and ordered executed.

6.  On 26 July 1979, the applicant was transferred to the Petersburg, VA County Jail pending disposition of civilian charges related to murder.

7.  On 4 October 1979, the applicant was returned to military confinement pending court-martial charges after having been convicted by a civil court for the civilian charges of accessory after the fact to murder and being sentenced to 12 months confinement (9 months was suspended on the condition of good behavior) and a fine.

8.  On 4 October 1979, the applicant was released from confinement and the court-martial charges were withdrawn.

9.  The applicant's complete separation packet is not available for review with this case.  However, his service records contain the following documents:

	a.  A memorandum, dated 18 October 1979, directing the applicant's release from the custody of the Army under the provisions of chapter 14, section II, of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of fraudulent enlistment (concealment of conviction by civil court); and



	b.  A copy of Orders 203-203, issued by Headquarters, U.S. Army Armor Center, Fort Knox, on 18 October 1979, directing the applicant's reassignment to the U.S. Army Separation Transfer Point for separation processing.

10.  The applicant's records also contain a properly-constituted DD Form 214 that shows the applicant was released from the custody and control of the Army on 18 October 1979 for misconduct-fraudulent entry, under the provisions of Army Regulation 635-200, chapter 14.  This form also shows he entered active duty on 4 April 1979 and he was separated on 18 October 1979.  Item 12c (Net Active Service This Period) of this form shows the entry "00 00 00," item 24 (Character of Service) shows the entry "NA" (not applicable), and item 26 (Separation Code) shows the entry "YKG."

11.  Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for processing fraudulent entry cases and provided for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the service.  Section II pertained to incident of fraudulent entry.  It stated that fraudulent entry was the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known might have resulted in rejection.  Any incident which met the foregoing could be cause for discharge for fraudulent entry.  All service performed under a fraudulent enlistment was considered null and void.

12.  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.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  Characterization or description of service is determined by directives authorizing separation.  The version of the regulation in effect at the time stated that for a Soldier being released from the custody and control of the Army due to a fraudulent void enlistment, "NA" would be entered in item 24 of the DD Form 214.


14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation in effect at the time showed that SPD "YKG" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Fraudulent Entry" and the authority for discharge under this SPD was “chapter 14 of Army Regulation 635-200."

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances of the applicant's separation are not available for review with this case.  However, his records contain a memorandum, signed by the approval authority; a discharge order; and a properly-constituted DD Form 214 that show he was released from the custody of the Army by reason of fraudulent entry.  It appears that the applicant had failed to disclose a past criminal record at the time of his enlistment.

2.  Lacking any evidence to the contrary, the applicant’s administrative separation was presumably accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.  He was assigned the proper separation code and authority for separation.  The appropriate character of service associated with this type of discharge at the time was "NA" which is correctly shown on his DD Form 214.  There is neither an error nor an injustice.

3.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to a general, under honorable conditions discharge.

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)                                         AR20090015384



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ABCMR Record of Proceedings (cont)                                         AR20090015384



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