IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100018652 


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, her general discharge under honorable conditions for fraudulent enlistment be upgraded to an honorable discharge.

2.  The applicant states her recruiter enlisted her in the Army with knowledge of her minor child.  The recruiter told her she only needed to give her parents temporary custody of her daughter until she completed basic training and advanced individual training.  She states she provided complete information concerning her child to the Army and was paid for her child.  She sent an allotment to her parents for the care of her daughter.  She states her recruiter should be held accountable for providing her with false information.  She states her discharge makes her ineligible for certain benefits.  Her commander at Headquarters and Headquarters Battery, Division Artillery, submitted a letter on her behalf, but his request for a waiver was denied.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 5 May 1983.

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 Regular Army on 10 October 1980 for a period of 4 years.  She completed basic combat training and advanced individual training and was awarded military occupational specialty 82C (Field Artillery Surveyor).

3.  Section IV (Other Background Data) of her DD Form 1966 (Record of Military Processing - Armed Forces of the United States) provides for entries concerning the applicant's father, mother, spouse, children, and other relatives.  In the space for children the applicant indicated "N/A" [not applicable].

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows she had 2 days of lost time on 8-9 January 1981 due to being absent without leave (AWOL).  There is no record of disciplinary action taken as a result of this AWOL.

5.  She completed a 12-month tour of duty in Korea on 16 July 1982 and on 18 August 1982 she was awarded the Army Achievement Medal for exceptionally meritorious achievements from January to April 1982.

6.  On 22 October 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go at the time prescribed to her appointed place of duty.

7.  On 9 March 1983, the applicant's commander was notified that the applicant had concealed a disqualifying factor in her enlistment.

8.  On 10 March 1983, the applicant's commander notified her he was initiating action under the provisions of chapter 7 of Army Regulation 635-200 (Personnel Separations) to discharge her from active duty.  The commander notified her that she had the right to:

* consult with counsel
* request her case be presented before a board of officers if she had over 6 years of service
* submit a statement in her own behalf
* obtain copies of documents to be sent to the separation authority

9.  The applicant requested:

* her case be considered by a board of officers
* a personal appearance
* to submit a statement in her own behalf
* representation by military counsel

10.  The applicant's commander recommended that she be discharged.  At the time she enlisted in September 1980 she had a dependent child and was not married.  Rule F, table 2-1, of Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), interim change 11, dated 1 January 1977, stated an applicant without a spouse and who has one or more minor children is not qualified for enlistment and a waiver for enlistment is not authorized.  The applicant's failure to disclose at enlistment that she had a dependent minor child constituted a concealment of a nonwaivable disqualification.

11.  On 4 April 1983, the applicant submitted a statement in her own behalf.  She stated she informed her recruiter she had a dependent child.  The recruiter informed her she would need a power of attorney giving her mother custody of her child.  She obtained a power of attorney and gave it to her recruiter.  She was questioned about it at Fort Sill, OK, by two individuals, one a captain, and was told they would check it out and if they had any further questions they would contact her.

12.  The applicant's first intermediate commander recommended approval of waiver of the disqualification and that the applicant be retained on active duty.  He stated she had served approximately 30 months of her enlistment and her performance of duty and personal conduct during the 7 months she was assigned to his unit had been commendable.  She projects sincerity and dedication.  She was physically fit and met Army height and weight standards.  The commander stated that although her enlistment contract did not reflect the existence of a minor child, there was sufficient doubt that the omission was a deliberate act on the part of the applicant to act in a fraudulent manner.

13.  During her processing for separation, statements were submitted on her behalf by a major, a chief warrant officer three, a master sergeant, and two sergeants first class.  All of the officers and senior noncommissioned officers recommended the applicant for retention in the Army.  Statements made include:

* her performance was at a level far above that usually seen in a person of her grade and experience
* she was an asset to the unit and the U.S. Army
* she completed her assignments in a timely and efficient manner
* she frequently forfeited her lunch hour for the good of the section
* her dedication to excellence and her willingness to devote many extra hours beyond normal duty produced a positive reaction among her superiors
* she showed herself to be technically proficient and competent in her duty position
* she epitomized those attributes required of a Soldier in today's Army
* her strong sense of devotion to duty, coupled with the highest degree of professional competence and moral courage, gained her the highest respect and admiration of her peers and superiors
* she willingly did everything asked of her and frequently did more on her own initiative

14.  On 27 April 1983 after careful consideration, the separation authority disapproved the request to retain the applicant.  He stated the Assistant Secretary of the Army for Manpower and Reserve Affairs maintained that retention of fraudulent enlistees weakens enlistment standards, rewards dishonesty, and lends credence to the belief that the Army is a rehabilitative agency.  He continued that the applicant's performance was noted; however, her disqualification was not waivable at the time of her entry on active duty.  Had her status been known at the time she entered active duty, she could not have obtained a waiver.

15.  On 5 May 1983, the applicant was discharged by reason of fraudulent entry. She completed 2 years, 6 months, and 24 days of active service that was characterized as under honorable conditions.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 7-17 provided that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.

	b.  Paragraph 7-17b(10) stated that applicants who misrepresent their intent with regard to legal custody of children will be processed for separation for fraudulent entry.

Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions.

17.  Army Regulation 635-200 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.  When a member is discharged before his or her expiration of term of service for a reason for which an honorable discharge is discretionary, the following considerations apply.

	a.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense.  A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ, Article 15.

	b.  An honorable discharge may be furnished when disqualifying entries in the member's record are out-weighed by subsequent honest and faithful service over a greater period of time during the current term of service.

	c.  Unless otherwise ineligible, a member may receive an honorable discharge if he or she has, during his or her current enlistment, received a personal decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her discharge should be upgraded to an honorable discharge.

2.  The applicant clearly failed to show on her application for enlistment that she had a child.  She states her recruiter knew about her child and advised her to obtain a power of attorney to transfer custody to her mother.  If true, the recruiter should bear some responsibility in that he verifies information an applicant enters on the application for enlistment.  Even though custody is transferred to another, the child must be listed in section IV of the DD Form 1966.  Therefore, the reason for her discharge was appropriate.

3.  During her processing for discharge the applicant requested her case be considered by a board of officers.  However, she was not entitled to have her case considered by a board of officers because she did not have over 6 years of service and she did not receive an under other than honorable conditions discharge.

4.  The evidence shows the applicant was properly discharged in accordance with regulations in effect at the time.  The reasons for discharge were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize her rights.

5.  The applicant accepted NJP on one occasion for a minor offense and had 2 days of lost time.  The circumstances of the 2 days of lost time are not available and there is no record of disciplinary action having been taken.

6.  The applicant was discharged under provisions for which the issuance of an honorable discharge is discretionary.

7.  The applicant completed a 12-month tour of duty in Korea and was awarded the Army Achievement Medal for her achievements during her tour.

8.  Statements from unit officers and senior noncommissioned officers all attested that the applicant met and exceeded the standards of conduct and performance of duty for Army personnel.  All of these statements recommended the applicant be retained in the Army.  The applicant's first intermediate commander stated there was sufficient doubt that the omission of her child was a deliberate act on the part of the applicant to act in a fraudulent manner.

9.  With the exception of two minor infractions, the applicant's 26 months of service is considered as meeting the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, as a matter of equity, it would be appropriate to upgrade the characterization of her discharge to honorable.

BOARD VOTE:

____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:

     a.  showing she was separated from the service with an honorable characterization of service on 5 May 1983;

     b.  issuing to her an Honorable Discharge Certificate from the Army of the United States, dated 5 May 1983; and

     c.  issuing to her a new DD Form 214 reflecting the above corrections.




      ____________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)                                         AR20100018652



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ABCMR Record of Proceedings (cont)                                         AR20100018652



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