BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016597 


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, the words "fraudulent entry" be removed from item 9c (Authority and Reason) of his DD Form 214 (Report of Separation from Active Duty) with an effective date of 27 October 1977.

2.  The applicant states he does not think his DD Form 214 should state fraudulent entry.  He states he did not commit fraud.  He omitted information on his enlistment document as his recruiter instructed him.  He wanted an opportunity to serve his country.

3.  The applicant provides a copy of:

* an excerpt from Army Regulation 635-200 (Personnel Separations)
* a letter to him from his Congressional representative, dated 14 May 2010
* his 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.  The applicant enlisted in the U.S. Army Reserve on 3 August 1977 for a period of 6 years.  He entered active duty on 26 August 1977.

3.  The applicant checked the "No" block for all questions in item 40 (Involvement with Police or Judicial Authorities) on page 4 of his DD Form 1966 (Application for Enlistment - Armed Forces of the United States).  He signed his application in section V (Certification) certifying that the information given by him in the application was true, complete, and correct to the best of his knowledge and belief.

4.  A letter from the Clerk of the Courts of Delaware County, Media, PA, dated 20 September 1977, forwarded two documents concerning the applicant.

	a.  On 28 August 1974, the applicant was indicted by the Grand Jury of Delaware County, PA, for possession of marijuana in the amount of less than 30 grams.

	b.  On 8 April 1975, the applicant pled guilty and was placed on county probation for 1 year upon payment of $10.00 court costs, fined $500.00, and released on his own recognizance.

5.  On 3 October 1977, the applicant's commander notified him he was initiating action to eliminate him from the service for fraudulent entry due to concealment of his conviction and probation by civil authorities.

6.  The commander advised the applicant he had the right to:

* consult with counsel
* present his case before a board of officers
* submit a statement in his own behalf
* be represented at any hearing by appointed counsel
* waive any of the above rights in writing
* withdraw his waiver of his rights at any time prior to the date the discharge authority directs or approves his discharge and request that his case be presented before a board of officers

7.  On 5 October 1977, the applicant stated he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his discharge for fraudulent entry under chapter 14 of Army Regulations 635-200.  The applicant:

* waived consideration of his case by a board of officers
* waived personal appearance before a board of officers
* submitted a statement in his own behalf
* requested representation by Captain A____, Judge Advocate General's Corps

8.  The applicant submitted a statement in his own behalf on 7 October 1977.  He said he stated to the recruiter that he had a police record and the recruiter told him not to worry about it.  He stated the recruiter told him that when they ask him about his police record to say no police record or arrests.

9.  On 14 October 1977, the appropriate authority directed the voidance of the applicant's enlistment for fraudulent entry based on concealment of his conviction and probation by civil authorities for possession of marijuana.

10.  On 27 October 1977, the applicant was released from custody and control of the Army under the provisions of chapter 14 of Army Regulation 635-200.  Item 9c of his DD Form 214 reads, "CHAP 14 AR 635-200 SPD YKG MISCONDUCT-FRAUDULENT ENTRY."

11.  Army Regulations 635-5 (Separation Documents), then in effect, stated in:

	a.  paragraph 2-5 (Reissuance of DD Form 214) that a DD Form 215 (Correction to DD Form 214) will not be issued to correct items 9c or 9e of the DD Form 214; and

	b.  paragraph 2-7l (9c) to enter the statutory and/or regulatory authority for separation plus the separation program designator (SPD) code.  The narrative reason for separation was not to be entered.

12.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that SPD code YKG is the appropriate code to assign to Soldiers separated under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct for fraudulent entry.

13.  Army Regulation 635-200, then in effect, stated that when an individual was discharged for fraudulent entry, the entry on the DD Form 214 would be "Chapter 14, Army Regulation 635-200."  The SPD was to be entered in accordance with Army Regulation 635-5-1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the words "fraudulent entry" be removed from item 9c of his DD Form 214.  He contends he did not commit fraud, his recruiter did.

2.  The documents from the Clerk of the Courts of Delaware County clearly show the applicant did not answer honestly in item 40 of his DD Form 1966.  Therefore, he was appropriately processed for administrative separation.

3.  However, Army Regulation 635-5 specifically stated the narrative reason for separation was not to be entered in item 9c of the DD Form 214.  Army Regulation 635-200 stated the entry for the DD Form 214 would be chapter 14 of Army Regulation 635-200 for those who were discharged due to fraudulent entry.

4.  Army Regulation 635-5 also stated a DD Form 215 would not be used to correct item 9c of the DD Form 214.  Therefore, it would be appropriate to issue the applicant a new DD Form 214 for his period of service from 26 August 1977 to 27 October 1977.  The entry for item 9c of the DD Form 214 should read, "Chapter 14, Army Regulation 635-200, SPD YKG."

BOARD VOTE:

____x_  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant a new DD Form 214 for his period of service from 26 August 

1977 to 27 October 1977.  The entry for item 9c of the new DD Form 214 should read, "Chapter 14, Army Regulation 635-200, SPD YKG."



      __________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)                                         AR20100016597



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ABCMR Record of Proceedings (cont)                                         AR20100016597



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