IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090019115 


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 change of the narrative reason for separation on her DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states the following:

	a.  The narrative reason for separation (misconduct - fraudulent entry) looks very negative to potential employers.

	b.  The narrative reason looks to potential employers as though she was a bad person, was in trouble, or had a bad attitude, none of which was the case.

	c.  She was an excellent Soldier and was a squad leader during basic combat training and advanced individual training (AIT).

	d.  She was never cited for anything except for an incident involving the inappropriate possession of two passes.

	e.  After graduating from AIT, she received her DD Form 214 and was told to wait for her discharge orders.  She had no idea what her superiors were talking about.

	f.  She was surprised when she read the narrative reason for separation on her DD Form 214 and assumed "misconduct" referred to her possession of two passes.

	g.  Her drill sergeant informed her it was unlawful for her to be in the service because she was a single parent; however, her recruiter had her sign custody of her three children over to her mother.

	h.  She is not a deceiver, and if anyone is responsible it is the recruiter who completed her enlistment paperwork.

	i.  She loved the military and did a great job while she served.

	j.  She joined the military to provide a better life for herself and her children.

	k.  Due to the narrative reason for separation, she cannot apply for jobs as a veteran.  Providing prospective employers with a copy of her DD Form 214 will appall them and they will not call her.

3.  The applicant provides 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.  On 10 February 1982, the applicant executed an enlistment contract entering the U.S. Army Reserve in the Delayed Entry/Enlistment Program.  On 3 March 1982, she entered active duty in the Regular Army.

3.  During the enlistment process, the applicant completed section IV (Other Background Data) of her application for enlistment (DD Form 1966).  Item 36 (Involvement with Police or Judicial Authorities) shows she responded "yes" to following questions:

	a.  Item 36a.  Have you ever been arrested, charged, cited (including traffic violations) 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?

	b.  Item 36b.  As a result of being arrested, charged, cited, or held by law-enforcement or juvenile authorities, have you ever been convicted, fined or forfeited bond, or adjudicated a youthful offender or juvenile delinquent (regardless of whether the record in your case has been "sealed," expunged, or otherwise stricken from the court record)?

4.  In item 36f of DD Form 1966, the applicant provided specific information pertaining to her responses to items 36a and 36b.  She listed two speeding offenses and indicated she had been fined $50.00 and $25.00.

5.  The instructions for item 36f state to "include all incidents with law-enforcement authorities even if the citation or charge was dropped or dismissed or you were found not guilty or you have been told by recruiting personnel or anyone else that the incident was not important enough to list."

6.  The applicant signed section V (Certifications) of her application for enlistment indicating the information she provided was true, complete, and correct to the best of her knowledge.  She also acknowledged that if any of the information was knowingly false or incorrect she could be tried in a civilian or military court and could receive a less than honorable discharge which could affect her future employment opportunities.

7.  A certified computer printout prepared by the Sherriff's Office, Broward County, Florida, shows the applicant was convicted of possession of marijuana on 22 May 1981 prior to her enlistment.  The applicant did not provide this information on her DD Form 1966.

8.  The record is void of documentation showing the applicant was given a waiver of moral or administrative disqualification to enlist.

9.  On 11 August 1982, the applicant's immediate commander informed her he was initiating action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) to eliminate her from the service for failing to list her arrest and conviction for possession of marijuana in item 36, DD Form 1966.

10.  The applicant acknowledged receipt of the notification of intent to initiate separation, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect, the rights available to her, the effect of any action taken by her in waiving her rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that she could expect to encounter substantial prejudice in civilian life if she received a general discharge under honorable conditions and that, as the result of a discharge under other than honorable conditions, she could be ineligible for many or all benefits as a veteran under Federal and State laws.

11.  The applicant submitted a statement rebutting the proposed separation action.  She stated the following:

	a.  She told her recruiter of the incident and he told her that since the charges had been dropped and the case dismissed after she paid a fine, there was no need to document the arrest on her DD Form 1966.

	b.  She merely followed the suggestion of her recruiter.  She never intended nor wished to deceive anyone when she entered the Army.

	c.  She did not want to be separated from the Army.

12.  The record shows the applicant's immediate commander recommended she be retained in service.  Intermediate commanders acknowledged it was questionable that the applicant willingly concealed the offense, but recommended discharge based on the fact that she was unqualified for enlistment.

13.  On 31 August 1982, the separation authority approved the applicant's discharge for fraudulent entry and directed the applicant receive a DD Form 256A (Honorable Discharge Certificate).  On 8 September 1982, the applicant was discharged accordingly.  She completed 6 months and 6 days of creditable active military service.

14.  There is no indication the applicant petitioned the Army Discharge Review Board within that board's 15-year statute of limitations.

15.  The version of Army Regulation 601-210 (Regular Army Enlistment Program) in effect at the time states a civil court conviction concerning the use or possession of marijuana is a disqualification for enlistment that may be waived.

16.  The version of Army Regulation 635-200 in effect at the time states the following:

	a.  Fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.

	b.  Commanders will determine if the information is, in fact, disqualifying. In each instance in which information previously concealed by an enlistee is revealed which gives rise to the suspicion that the enlistee fraudulently enlisted/reenlisted by a deliberate material misrepresentation, omission, or concealment as to his qualifications for enlistment, commanders must evaluate the newly revealed information in light of the criteria established in Army Regulation 601-210 to determine whether the newly discovered information, if true, would have disqualified the individual under Army Regulation 601-210.  If the disqualification was waivable, but was not, in fact, waived, it is a disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change the narrative reason for separation on her DD Form 214 was carefully considered and is not supported by the evidence.

2.  Prior to enlisting, the applicant pleaded guilty to marijuana possession in civil court.  This information was not provided on the DD Form 1966 certified by the applicant with her signature.  The penalties for omitting information on the DD Form 1966 were clear.

3.  There is no evidence in the available records showing the narrative reason for the applicant's separation is incorrect.  In the absence of such evidence, she is not entitled to have her record corrected to change the narrative reason for separation.

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)                                         AR20090019115



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ABCMR Record of Proceedings (cont)                                         AR20090019115



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