IN THE CASE OF:	  

		BOARD DATE:	    21 October 2010

		DOCKET NUMBER:  AR20100012556 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his total amount of service.

2.  The applicant states his DD Form 214 does not show the correct amount of time he served in the U.S. Army.

3.  The applicant provides a copy of his DD Form 214 in support of his request.

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 398 (Statement of Personal History) was completed by the applicant prior to entering military service.

	a.  In response to item 18 (Have you ever been detained, held, arrested, indicted or summoned into court as a defendant in a criminal proceeding, or convicted, fined, or imprisoned or placed on probation, or have you ever been ordered to deposit bail or collateral for the violation of any law, police regulation or ordinance (excluding minor traffic violations for which a fine or forfeiture of $25.00 or less was imposed)?  Include all court-martials while in military service.  If "Yes," list the date, the nature of the offense or violation, the name and location of the court or place of hearing, and the penalty imposed or other disposition of each case.), the applicant answered by entering "A.D.W. [assault with a deadly weapon] 1962 Los Angeles."

	b.  This document contains the statement, "I certify that the entries made by me above are true, complete, and correct to the best of my knowledge and belief and are made in good faith.  I understand that a knowing and willful false statement on this form can be punished by fine or imprisonment or both (see U.S. Code, Title 18, section 1001)."

	c.  This document shows the applicant placed his signature on the form on 10 May 1965.

3.  The applicant was inducted into the Army of the United States for a period of 24 months on 11 May 1965.

4.  On 26 May 1965, a background investigation revealed the applicant concealed prior civil arrests for assault with a deadly weapon on three occasions (20 January 1960, 14 January 1962, and 15 January 1962) and statutory rape (28 April 1965).

5.  Headquarters, U.S. Army Training Center Infantry and Fort Ord, CA, letter, dated 6 August 1965, shows the separation authority approved the separation of the applicant under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, Absence Without Leave, Desertion), section II, based on concealment of his arrest record and directed the applicant be issued a General Discharge Certificate.  The applicant was separated from the U.S. Army on 1 September 1965.

6.  A DD Form 214 shows the applicant was inducted on 11 May 1965 and he was discharged under honorable conditions on 1 September 1965.

	a.  Item 11c (Reason and Authority) shows the entry "Section II, Army Regulation 635-206, Separation Program Number 280 and U.S. Army Training Center Infantry and Fort Ord, CA, letter, dated 6 August 1965 (Fraudulent Entry)."

	b.  Item 24a (Creditable for Basic Pay Purposes) lines (1) through (3), item 24b (Total Active Service), and item 24c (Foreign and/or Sea Service) all contain zeros (i.e., no service).

7.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  The regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities or action taken against the Soldier which was tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

8.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that would be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It established standardized policy for preparing and distributing the DD Form 214.  Section II (Separation Documents), paragraph 4b, stated that a DD Form 214 would not be issued to enlisted personnel who were dropped from a period of service because of fraudulent enlistment or induction in accordance with Army Regulation 635-206, section II.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 covering the period 11 May 1965 through 1 September 1965 should be corrected to show all of his creditable service.

2.  The evidence of record confirms that the applicant was separated on 1 September 1965 under the provisions of Army Regulation 635-206, section II, for fraudulent entry by concealing previous civil arrests.

3.  The evidence of record shows the governing Army regulation directed that a DD Form 214 would not be issued to enlisted personnel who were dropped from a period of service because of fraudulent enlistment or induction in accordance with Army Regulation 635-206, section II.  Thus, the applicant was erroneously issued the DD Form 214 in question.  Despite this fact, no action is being taken by this Board to void the DD Form 214.  Further, since the DD Form 214 was erroneously issued, no action is being taken to show the completion of any creditable service in item 24 of the document.

4.  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 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)                                         AR20100012556



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ABCMR Record of Proceedings (cont)                                         AR20100012556



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