BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090016792 


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 amendment to Item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states she believes Item 28 should not state “Fraudulent Entry” because she did not enter the service fraudulently.  There is no viable reason for that judgment.  She trusted her command and accepted the early discharge to care for her young sons.  She noticed the reason stated in Item 28 after being denied employment.

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a copy of her DD Form 214.

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 show she enlisted in the Regular Army in pay grade E-2 on 10 October 1986, for 3 years, with prior enlisted service in the Army National Guard.  She completed training and was awarded military occupational specialty (MOS) 95B (Military Police).

3.  The applicant’s records contain a DA Form 3286-31-R (Statement of Understanding - United States Army Enlistment Policy for Applicant Without Spouse Who Have Surrendered Custody of Dependents), dated 31 July 1986.  This form shows the applicant acknowledged she was the natural parent of two children.  Her records also contain a DA Form 3266-61/3 (Statement of Understanding - Continued), dated 10 October 1986.  This form shows she acknowledged/certified that her two children had been placed in the custody of their grandmother.  She further certified that the custody agreement was intended to remain in full force and effect during the term of her enlistment and if she regained custody of the children, she would be processed for involuntary separation for fraudulent entry unless she could show that the regaining custody was not contrary to the stated intent (death or incapacity of the other parent or custodian).

4.  On 23 September 1987, the applicant’s company commander recommended she be discharged from the Army under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), paragraph 7-17(b)(8).  The company commander stated he was recommending her separation in accordance with Army Regulation 601-210 (Active and Reserve Components Enlistment Program), Table 2-1, Rule F(3), that states "Soldiers who have surrendered custody of their dependents at time of enlistment and regain custody of their children during the term of enlistment would be processed for involuntary separation for fraudulent enlistment."  The company commander recommended the applicant be issued a general, under honorable conditions discharge.

5.  On the same day, the applicant‘s company commander notified the applicant of his intent to initiate action to effect her discharge based on evidence of her having custody of her children.



6.  On 23 September 1987, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action for fraudulent entry.  She elected not to submit a statement in her own behalf.  She also acknowledged the effects in the event a general discharge was issued to her.

7.  On 8 October 1987, the applicant’s company commander stated that the applicant had her two children with her when she was interviewed and stated that she never intended to leave her children other than during her initial training.  The company commander also stated that the applicant’s actions since her entry into service had been consistently below standards.  Her misconduct was sufficient to warrant discharge under Army Regulation 635-200, chapter 14; however, he felt that the fraudulent discharge was the more appropriate discharge.

8.  On 13 October 1987, the applicant’s battalion commander recommended approval of the applicant’s discharge.  He stated that the applicant had surrendered custody of her dependents at the time of her enlistment and then regained custody during the term of her enlistment.  She also repeatedly failed to adapt to military life which was evidenced by seven acts of misconduct resulting in two Article 15s within a 7-month period.  The battalion commander recommended the applicant’s discharge be characterized as a general, under honorable discharge.

9.  On 19 October 1987, the appropriate separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 7, and issued a General Discharge Certificate.

10.  The applicant was discharged in pay grade E-1 on 22 October 1987, under the provisions of Army Regulation 635-200, paragraph 7-17b(8), for fraudulent entry, with a general, under honorable conditions discharge.  She was credited with 1 year and 13 days of net active service.  Item 28 of her DD Form 214 shows “Fraudulent Entry.”

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 7-17b(8) provided for the separation of members for the misrepresentation of intent with regard to legal custody of children and who executed the certificate required by Army Regulation 601-210 for fraudulent entry if the custody of the children was regained during her current term of enlistment.  A Soldier discharged under this chapter would be issued an honorable or general, under honorable conditions discharge, as appropriate.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that at the time of the applicant’s enlistment in the Army, she certified that she had given custody of her two children to their grandmother and that custody was intended to remain in full force and effect during the term of enlistment.  Based on evidence of her regaining custody of her children during her enlistment she was processed for separation for fraudulent entry.  After consulting with counsel, she acknowledged the proposed separation and the reason for her discharge.  She was discharged from the Army in accordance with pertinent regulations and Item 28 of her DD Form 214 is commensurate with and corresponds to the reason for her discharge.

2.  The evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations in effect at the time with no indication of procedural errors which would tend to jeopardize her rights.  Contrary to her contentions, the type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case.  The applicant has submitted neither probative evidence nor a convincing argument to show otherwise.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  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)                                         AR20090016792



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ABCMR Record of Proceedings (cont)                                         AR20090016792



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