IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090020475 


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 the Board's denial to remove the entry "Fraud Entry" from item 27 (Remarks) of his DD Form 214 (Report of Separation from Active Duty) with an effective date of 12 December 1974.

2.  The applicant states he did list his two misdemeanor arrests before he volunteered to go in the Army.

3.  The applicant provides copies of his:

* DD Form 398 (Statement of Personal History)
* DD Form 4 (Enlistment Contract - Armed Forces of the United States)

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 AR20080014608 on 18 November 2008.

2.  The applicant's military personnel records show he enlisted in the Regular Army on 21 August 1974 for a period of 3 years.

3.  The applicant’s record contains the DA Form 3286 (Statements for Enlistment) prepared during his enlistment processing.  Part II (Statement of Law 

Violations and Previous Convictions) of the DA Form 3286 contains "No" responses to question 3 (Have you ever been arrested, cited, charged or held by Federal, State, County, City or other law enforcement authorities or by Juvenile Court or Juvenile Probation Officials for any violation of any Federal Law, State Law, County or Municipal Law, Regulation or Ordinance?) and question 4 (Have you ever been convicted of a felony or any other offense, or adjudicated a youthful or juvenile delinquent?).  The applicant and a recruiting official authenticated this document with their signatures.

4.  The applicant's records contain a DD Form 398 that he completed on 
26 August 1974, 5 days after he enlisted.  He indicated on this form that he had been arrested in November 1973 and February 1974 for possession of marijuana.  The first offense was dismissed and he was fined $100.00 for the second offense.

5.  On 21 October 1974, the Chief, Security Division, U.S. Army Training Center, Infantry, Fort Polk, LA, notified the applicant’s brigade commander that the applicant was identified as a fraudulent entry under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
5-38.  An Entrance National Agency Check (ENTNAC) summary attached to the notification indicated the applicant had been arrested by the San Antonio police for the possession of marijuana on 25 November 1973 and on 2 February 1974.

6.  On 3 November 1974, the applicant’s unit commander recommended the applicant be eliminated from the service for fraudulent entry under the provisions of Army Regulations 635-200, chapter 14, paragraph 5c, and that he be issued a general discharge.

7.  On 5 November 1974, the applicant consulted with legal counsel and he was advised of the basis for his contemplated separation action based on his concealment of prior convictions and of the possible effects of receiving a general discharge.  Subsequent to receiving this counseling, the applicant acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life as a result of receiving a general discharge and he elected not to submit statements in his own behalf.

8.  On 25 November 1974, the separation authority approved the applicant’s separation and directed the applicant be issued a General Discharge Certificate. The authority listed on the approval is Army Regulation 635-200, chapter 5 (Separation for Convenience of the Government).

 9.  On 12 December 1974, the applicant was discharged.  He had completed 
3 months and 22 days of active service that was characterized as under honorable conditions.

	a.  Item 27 of his DD Form 214 contains the entry "Fraud Entry."

	b.  An entry in item 27 of his DD Form 214 indicates he was discharged under the provisions of Army Regulation 635-200, chapter 5.  The entry also indicates he was assigned the separation program designator (SPD) code of "JND."

10.  Headquarters, U.S. Army Training Center, Infantry, Fort Polk, Special Orders Number 345, dated 11 December 1974, listed 3 Soldiers to be discharged on
12 December 1974.  The applicant is listed on these orders as being discharged under the provisions of Army Regulation 635-200, chapter 5.  The reason for discharge is shown as "FRAUD ENTRY."

11.   Army Regulation 635-5-1 (SPD Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons.  The regulation shows that the SPD code of “JND” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Miscellaneous individual reasons (concealment of arrest record)” and that the authority for discharge under this SPD code is “paragraph 5-38 of Army Regulation 635-200.”

12.  Paragraph 5-38 of Army Regulation 635-200, in effect at the time, stated enlisted personnel who concealed an arrest record which did not result in civil court conviction could be discharged.  This policy permitted the elimination of personnel who represent a potential undesirable element and would be used only when it was clearly apparent that an individual had concealed a serious arrest record.  In addition, a pattern of arrests is suggestive of undesirable character traits and the pattern may include misdemeanors.  Individuals discharged under this paragraph were to be given a general or an honorable discharge.

13.  Army Regulation 635-200, chapter 14 (Misconduct - Fraudulent Entry), in effect at the time, 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.

14.  Army Regulation 635-5 (Separation Documents) states when a DD Form 214 is administratively issued or reissued the entry “DD Form 214 administratively issued/reissued on (date).” is to be made on all copies unless the appellate authority, Executive Order, or the Secretary of the Army directive specifies otherwise.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the entry "Fraud Entry" should be removed from item 27 of his DD Form 214.

2.  The applicant's commander had recommended him for elimination under the provisions of Army Regulation 635-200, chapter 14, for fraudulent entry.  However, it is clear the discharge authority intended the applicant to be discharged for the convenience of the government when he approved the discharge under the provisions of Army Regulation 635-200, chapter 5.

3.  The SPD code of "JND" assigned on the applicant's DD Form 214 specifies the authority for his discharge as Army Regulation 635-200, paragraph 5-38, and the reason as "Miscellaneous individual reasons (concealment of arrest record)." Nowhere in paragraph 5-38 does it state the individual is being discharged by reason of fraudulent entry.

4.  In view of the above, there is no reason or authority for the entry "Fraud entry" to be entered on the applicant's DD Form 214 and it is appropriate to remove it.  Therefore, it would be appropriate to reissue the applicant's DD Form 214 without the entry "Fraud entry" in item 18 (Remarks) of the current version.  The entry “DD Form 214 administratively reissued on (date).” is to be made on all copies of the newly issued DD Form 214.

5.  In addition, it is also appropriate to amend the applicant's discharge orders to show the reason for his discharge as "Miscellaneous individual reasons (concealment of arrest record)."

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20080014608, dated 
18 November 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing a 
DD Form 214 for the applicant's period of service from 21 August 1974 to 
12 December 1974 with the following corrections:

* remove the entry "Fraud Entry" in item 18
* adding the entry "DD Form 214 administratively reissued on (date)" in 
item 18 on all copies 

2.  The Board further recommends correction of Headquarters, U.S. Army Training Center, Infantry, Fort Polk, LA, Special Orders Number 345, dated
11 December 1974, as it pertains to the applicant to show the reason for his discharge as "Miscellaneous individual reasons (concealment of arrest record" instead of "FRAUD ENTRY."



      ___________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)                                         AR20090020475



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ABCMR Record of Proceedings (cont)                                         AR20090020475



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