BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100012297 


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, in effect, an upgrade of his discharge.

2.  The applicant states he was accused of shoplifting at the time.  However, he was never charged with shoplifting.  The recruiter told him to list everything on his application for enlistment and he did so.  He was young at the time and did not know the law or received any help from anyone.  He loved the Army and feels he lost out on benefits for himself and his children because of this mishap.  He would like his discharge corrected for the sake of obtaining education for his children and obtaining a loan.  

3.  The applicant provides the following documents:

* DD Form 214 (Report of Separation from Active Duty)
* Letters to and from the Office of the Adjutant General
* Certificate of Birth
* Letter from his Member of Congress
* Application for Enlistment
* Record of Emergency Data
* DA Form 31 (Request and Authority for Leave)
* Leave and Earning Statements
* W-2 Form (Wage and Tax Statement)




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 for a period of 3 years on 30 November 1977.  He answered "No" in item 40 ((Involvement with Police or Judicial Authorities) of his DD Form 1966 (Scheduling and Coding Sheet for Enlistees through the Armed Forces Examining and Entrance Station) to the question:

Have you ever been arrested, charged, cited or held by Federal, State or other law enforcement or juvenile authorities regardless of whether the citation or charge was dropped or dismissed or you were found not guilty? 

3.  He was subsequently reassigned to Fort Gordon, GA, for completion of basic combat and advanced individual training in military occupational specialty 31M (Multichannel Communications Equipment Operator).

4.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 8 May 1978, for failing to be at his appointed place of duty
* On 2 June 1978, for disobeying a lawful order

5.  On 28 March 1978, a review of the applicant's military records revealed he did not disclose his previous civil arrest and accordingly, his security investigation was terminated.  The records show he was previously arrested for theft - shoplifting in South Crown Point, TN, on 7 October 1975 and he was sentenced to suspended confinement and payment of court fees. 

6.  On 13 April 1978, his immediate commander initiated a recommendation to void the applicant's enlistment due to fraudulent enlistment. 
7.  On 1 May 1978, his intermediate commander recommended approval of voiding the applicant's enlistment and indicated the applicant withheld a record of an arrest and conviction for shoplifting upon his enlistment in the Army, an omission that adversely influenced his enlistment.

8.  On 18 May 1978, his senior commander recommended approval to void his enlistment contract.

9.  On 7 June 1978, the separation authority ordered the applicant's enlistment voided in accordance with paragraph 14-5a of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and the applicant's release from military control by reason of fraudulent enlistment.  Accordingly, he was released from the custody and control of the Army on 14 June 1978.

10.  His DD Form 214 shows he was released from the custody and control of the Army on 14 June 1978 for misconduct-fraudulent entry, under the provisions of Army Regulation 635-200, chapter 14.  This form also shows he entered active duty on 30 November 1977 and he was released 14 June 1978.  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 3-7a, 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.


13.  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.

14.  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.

15.  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 evidence of record shows prior to his enlistment, the applicant was previously arrested and convicted by civil court for shoplifting.  However, he failed to disclose this information upon his enlistment.  Accordingly, his chain of command initiated action to void his enlistment contract.  He was ultimately released from the custody of the Army by reason of fraudulent entry.  

2.  His administrative separation was 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.  

3.  Time spent in an enlistment which is determined to be fraudulent and is terminated for this reason is not creditable service and cannot be characterized.  In view of the foregoing evidence, his is not entitled to the 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)                                         AR20100012297



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ABCMR Record of Proceedings (cont)                                         AR20100012297



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