BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100012370 


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 upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states his discharge should be upgraded based on a review of his record and so that he may qualify for veteran's benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

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.  A DD Form 1966 (Record of Military Processing - Armed Forces of the United States) was completed by the applicant as part of his enlistment processing, prior to him entering military service.

   a.  Item 35 (Character and Social Adjustment), section IV (Other Background Data), block c (Have you ever been involved in the use, purchase, possession or sale of marijuana, LSD, or any other harmful or habit-forming drugs and/or chemicals, except as prescribed by a licensed physician?), shows the applicant placed his initials in the "No" column.

   b.  Item 36 (Involvement with Police or Judicial Authorities) shows the applicant acknowledged (with his initials) in the affirmative.  He also entered
"Crossing Street, 1980, Fullerton, [age] 17, Fine $25.00, Paid, Traffic [Court]."

   c.  Item 37 (Remarks) contains the following statement, "Reference item 35c:  'Have you ever been involved in the use, purchase, possession or sale of LSD, or any other harmful or habit-forming drug and/or chemical, except as prescribed by a licensed physician, or the sale of marijuana?'" the applicant placed a checkmark next to the "No" block and he initialed this item.

   d.  Section V (Certifications), item 39, states, "I certify that the information given by me in this document is true, complete, and correct to the best of my knowledge and belief.  I understand that I am being accepted for enlistment based on the information provided by me in this document; that if any of the information is knowingly false or incorrect, I could be tried in a civilian or military court and could receive a less than honorable discharge which could affect my future employment opportunities."

   e.  This document also shows the applicant placed his signature on the form on 11 December 1981.

3.  The applicant enlisted and entered active duty in the Regular Army for a period of 3 years on 12 January 1982.  Upon completion of training he was awarded military occupational specialty 76Y (Unit Supply Specialist).  He was advanced to private (E-2) on 12 July 1982

4.  On 13 July 1982, a background investigation revealed that the applicant concealed prior civil arrests for possession of marijuana (i.e., on two occasions, 25 February 1977 and 9 January 1978), assault with a deadly weapon
(21 October 1977), grand theft of merchandise (15 March 1979), and possession of barbiturates (20 September 1979).

5.  On 26 January 1983, the company commander recommended the applicant be eliminated from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-14, based on concealment from the U.S. Army of an arrest record.

6.  On 26 January 1983, the applicant acknowledged with his signature that he was advised by the captain serving as defense counsel of the basis for his contemplated discharge and its effect pursuant to Army Regulation 635-200, paragraph 5-14.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.  He was also advised that as the result of issuance of a discharge under other than honorable conditions, he may make application to the Army Discharge Review Board or the ABCMR for upgrading; however, he understood that an act of consideration by either board does not imply that his discharge would be upgraded.
   
7.  On 2 February 1983, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 5-14, for concealment of arrest record and directed the applicant be issued a General Discharge Certificate.  The applicant was discharged on 17 February 1983.

8.  The applicant's DD Form 214 shows he entered active duty on 12 January 1982 and he was discharged under honorable conditions on 17 February 1983 for concealment of arrest record.

   a.  At the time he had completed 1 year, 1 month, and 6 days of net active service.

   b.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the Army Service Ribbon, Parachute Badge, Expert Marksmanship Qualification Badge with Rifle (M-16) and Grenade Bars.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 (Separation for Convenience of the Government), paragraph 5-14, in pertinent part, provided that enlisted personnel who concealed an arrest record which did not result in civil court conviction at the time of enlistment or induction might be discharged.  Separation is based on the false statements made in enlistment documents regarding the existence of an arrest record.  Individuals discharged under this paragraph would be given an honorable discharge or a general discharge.  
11.  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 under honorable conditions discharge should be upgraded to an honorable discharge for possible veteran's benefits.

2.  Records show that prior to his enlistment in the RA, on an official document that was directly related to his enlistment processing, the applicant denied that he had any prior involvement with police or judicial authorities, with the exception of a single traffic violation.  In addition, the applicant certified that all answers to questions, statements, and entries on the form were true, correct, and complete and he acknowledged that if he intentionally concealed any information required, he may later be subject to trial in a civilian or military court and could he receive a less than honorable discharge.  Moreover, the applicant placed his signature on the document despite warnings against making false statements.

3.  The evidence of record shows that subsequent to the applicant's enlistment in the RA, a background investigation revealed that the applicant concealed prior civil arrests for possession of marijuana (on two occasions), assault with a deadly weapon, grand theft of merchandise, and possession of barbiturates.

4.  The evidence of record confirms the applicant's separation on 17 February 1983, under the provisions of Army Regulation 635-200, paragraph 5-14, for fraudulent entry into the Army by concealing previous civil arrests was administratively correct, in compliance with all requirements of law and applicable regulations, the rights of the applicant were fully protected throughout the separation process, and his discharge was proper and equitable.

5.  The applicant's military records were carefully reviewed and considered.

	a.  The applicant completed just over 13 months of his 3-year enlistment commitment.

  	b.  His records do not show any evidence of an individual award for valor, heroism, meritorious service or achievement.  

   c.  The applicant was less than truthful in his application for entry into the U.S. Armed Forces.

   d.  In view of the foregoing, he is not entitled to an honorable discharge.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of enhancing employment opportunities or making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20100012370



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ABCMR Record of Proceedings (cont)                                         AR20100012370



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