IN THE CASE OF:	 

		BOARD DATE:	  06 May 2010 

		DOCKET NUMBER:  AR20090018569 


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 earlier request for an upgrade of his general discharge to a fully honorable discharge.

2.  The applicant states there were many errors in his separation processing.  The separation authority disapproved the recommendation of his chain of command to retain him; his quality of service outweighed his fraudulent entry; the separation authority erred in that he did not give him the opportunity to use all the services available for retention; and the governing Army regulation does not preclude him from receiving an honorable discharge.  He elaborates as follows:

	a.  The regulation defines a fraudulent entry as the procurement of an enlistment, induction, or period of active service through any deliberate material representation, omission, or concealment which, if known, might have resulted in rejection.  Any incident which meets this definition may be cause for discharge for fraudulent entry.  However, the regulation states "may be discharged"; it does not state "shall be discharged."

	b.  There was a substantial investment in his training which would have required reasonable efforts at rehabilitation prior to the initiation of separation action.  It was unfair for the separation authority to disapprove the recommendation made by his commander to retain him.

	c.  His character of service was exemplary.  He conducted himself professionally, volunteered for several details, was selected for various missions, and represented the Army well.  At the time of his enlistment, however, he made an immature mistake.  He was trying to get away from a life that was spiraling out of control.  He allowed someone to manipulate him for personal gain.  It should not have happened.  Nonetheless, he followed Army protocol and did beyond what was expected of him as a Soldier.  He kept accountability of his tools even while he was being separated.  He motivated others and performed exceptionally well.  His honest and faithful service over a greater period of time far outweighed his disqualifying entry.  The governing factor in determining his character of service should have been his pattern of service, not one isolated incident.

	d.  He was unaware that he could not gain entry into the Army with a criminal past.  During the Vietnam War and even today many recruits had a criminal history but were allowed entry.  He did not deliberately intend material representation, omission, or concealment.  He brought up the criminal past to his recruiter, but he was told not to worry about it.

	e.  He understands that he made an error.  But once in the military, he made no mistakes and performed exceptionally well.  The governing regulation allows for an honorable discharge based on his quality of service.  It would be unjust to allow his character of service to remain as a general discharge when his quality of his service met the standards of acceptable conduct and performance of duty for Army personnel.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090004061 on 30 June 2009.

2.  The applicant submitted a new argument which was not previously considered by the ABCMR.  Therefore, it is considered new evidence and, as such, warrants consideration by the Board.

3.  Prior to his enlistment in the Regular Army, the applicant pled guilty at an Illinois circuit court and was convicted for the civilian charge of burglary on 16 March 1979.  He was sentenced to payment of a fine, restitution, probation, and 76 days of imprisonment in a county jail.

4.  On 8 June 1979, he again appeared before a circuit court for the civilian charge of attempted burglary, criminal damage to property, and theft; however, his case was dismissed.

5.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 30 July 1980.  He completed a DD Form 1966 (Statement for Enlistment) in connection with this enlistment.  Item 36 (Involvement with Police or Judicial Authorities) of his DD Form 1966 stated:

Your answers to the following questions will be verified with the Federal Bureau of Investigation 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.

6.  He placed his initial in the "No" block of question 36a (Have you ever been arrested, charged, cited (including traffic citations) or held by any law-enforcement or juvenile authorities in the United States or in a foreign country regardless of whether the citation or charge was dropped or dismissed or you were found not guilty?).

7.  He completed basic combat and advanced individual training and was awarded military occupational specialty 51R (Electrician)).  The highest rank/grade he attained during his military service was private first class/E-3.  He was assigned to Company B, 43rd Engineer Battalion, Fort Benning, GA.

8.  On 5 August 1981, his immediate commander notified him by memorandum that Army officials received confirmation of his prior conviction.  However, he was being recommended for retention in the Army under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) because of his fraudulent entry by reason of concealment of conviction by civil court.

9.  On 24 November 1981, he acknowledged receipt of the commander's intent to retain him and was advised of the rights available to him under Article 31 of the Uniform Code of Military Justice (UCMJ) and indicated "there was not recruiter connivance involved."  He also acknowledged that his service was invalid because it was based on an enlistment or order to active duty which was improper.  He also indicated that he understood that current regulation provided that this defect may be waived and that he could be allowed to remain on active duty.  He indicated that he desired to remain on active duty in order to complete the period of service which he would have been required to serve if the defect had not occurred.  He requested the defect be waived and that if his request was approved, he agreed to complete his term of service subject to the UCMJ.

10.  On 24 November 1981, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for entering the service by reason of fraudulent entry because of failure to list his conviction by civil court.  The immediate commander recommended his retention in the Army and indicated that he had been in command for a short period of time and he could only base his recommendation on the applicant's records and the recommendations of his superiors.  He added that the applicant took pride in his job and his performance was satisfactory.  His continued service was beneficial to the Army and the unit.

11.  On 5 January 1982, his intermediate commander recommended approval of his retention and indicated that the applicant was a benefit to the unit despite his mistake when he enlisted in the Army.

12.  On 15 January 1982, his senior commander recommended approval of the applicant's separation.

13.  On 29 January 1982, the applicant made a statement to express why he should remain in the Army.  He stated that due to his lack of maturity, he made a mistake and that the Army should overlook his immaturity and should rather consider his progress.  He added that he had an outstanding record and that his plans to make the Army a career rested with the separation authority.

14.  On an unknown date in January or February 1982, the separation authority disapproved the applicant's recommendation for retention and, having verified the fraudulent entry, ordered the applicant be discharged from the Army and furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 1 March 1982.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (fraudulent entry) with a general under honorable conditions character of service.  This form further confirms he completed 1 year, 7 months, and 2 days of creditable military service.

15.  There is no indication in his records he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 

16.  Army Regulation 635-200, chapter 14, establishes policy and prescribes procedures for processing fraudulent entry cases and provides for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the service.  Paragraph 14-4 pertains to incidents of fraudulent entry.  It states that fraudulent entry is 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 meets the foregoing may be cause for discharge for fraudulent entry.  All service performed under a fraudulent enlistment is considered null and void.  Subparagraph 14-4c states, in pertinent part, that concealment of a conviction by a civil court was cause for separation for fraudulent entry.

17.  Army Regulation 635-200, paragraph 3-7a, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded.

2.  His DA Form 1966, dated 30 July 1980, clearly indicates he reported that he had no law violations prior to his entry on active duty, which was false.  The evidence shows he had been previously convicted for the civilian charge of burglary and he also had a second civilian charge that was dismissed.  His concealment of his prior conviction and the dismissed charge at the time of his enlistment would have required a waiver.  Without an approved waiver, it was a disqualification which would have precluded his enlistment.

3.  Accordingly, his chain of command initiated separation action with a recommendation by his immediate and intermediate commanders to retain him.  The senior commander recommended approval of his separation and the separation authority approved it.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  With respect to his arguments:

	a.  Contrary to his belief that the separation authority made an error, the separation authority was not by bound by the recommendations of the initiating or intermediate commander and had complete discretion to direct any type of discharge and characterization of service authorized by the applicable regulation.

	b.  Contrary to his argument that his recruiter told him not to disclose his prior law violations, the evidence of record shows that he acknowledged receipt of the commander's notification of his intent to retain him on 24 November 1981 and indicated that "there was not recruiter connivance involved."

	c.  The applicant is right in that his quality of service was satisfactory.  Nevertheless, when military authorities determined he had failed to disclose his law violations, by regulation the time he served on active duty should have been considered null and void.  However, the separation authority approved a general discharge which acknowledged the applicant's service and, in effect, allowed him to obtain veterans' benefits for his creditable service.

5.  He was properly discharged under the provisions of chapter 14 of Army Regulation 635-200 for misconduct (fraudulent entry, concealment of conviction by civil court).  In order to justify correction of a military record, he must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  He has provided no evidence and there is none to show that an error occurred or that he is entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR20090004061, dated 30 June 2009.



      ___________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)                                         AR20090018569



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ABCMR Record of Proceedings (cont)                                         AR20090018569



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