IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100021886 


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 change of his reentry eligibility (RE) code from RE-3 to RE-1.

2.  He states, in effect, his record is in error because he is not the one who omitted information during his first enlistment; it was his recruiter.  He contends he was serving on his second enlistment and he was a good Soldier.

3.  He did not provide any additional documentation. 

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 initially enlisted in the Army National Guard (ARNG) on 
7 January 1996.  He completed training in military occupational specialty (MOS) 51B (Carpentry and Masonry Specialist) and served in the Kansas ARNG for 
6 years, 10 months, and 20 days.  The enlistment contract for this period of service is not in the available record.  On an unknown date, he separated from the ARNG and he was transferred to the U.S. Army Reserve (USAR).

3.  His record contains Orders C-05-212829, issued by U.S. Army Reserve Personnel Command on 8 May 2002.  These orders show he was released from the USAR Control Group (Annual Training) and he was reassigned to the
73rd Field Hospital Tampa, FL.

4.  A memorandum from the operations officer to the commander of the U.S. Army Recruiting Battalion Tampa, Subject:  Fraudulent Enlistment Interview, dated 18 March 2003, contains the following key comments:

	a.  There appears to be a poor job of “hot seating” at the station level;

	b.  The applicant did not disclose any law violations on his USAREC Form 1104-R-E (Enlistment Eligibility Questionnaire) or Standard Form (SF) 86 (Questionnaire for National Security Positions) during his Delayed Entry Program (DEP) in-processing;

	c.  His criminal history shows:

ARREST DATE
CHARGE
REMARKS
5 March 1997
Sexual Battery
Misdemeanor
26 May 1998
Driving While Suspended
Felony
17 August 1998
Obstructing Legal Process

	d.  Applicant stated he did not disclose the charges because he had disclosed them on his first enlistment and thought it was part of his military record;

	e.  Based on the interview and the fact the applicant was a prior service applicant, he did not believe the undisclosed charges were an attempt to enlist fraudulently; and

	f.  In accordance with Army Regulation 601-210 (Active and Reserve Components Enlistment Program), only those charges which occurred during or after the last period of service are considered current for processing purposes.


5.  His Regular Army enlistment packet for the period of service beginning on
25 April 2003 contains documents required to be completed prior to entry on active duty:

	a.  His USMEPCOM Form 601-23-5-R-E (Introductory Pre-Accession Interview), shows he responded as such:

		(1)  Question 1:  Have you used marijuana during your DEP enlistment?  NO

		(2)  Question 2:  Did you sell marijuana during your DEP enlistment?  NO

		(3)  Question 3:  Did you have trouble of any kind because of marijuana
or alcohol during your DEP enlistment, or at any other time?  NO

		(4)  Question 4:  Have you told your Service counselor EVERYTHING about illegal use, possession, or sale of drugs or substances besides marijuana or alcohol?  YES

		(5)  Question 5:  Have you told your Service counselor everything about any problems you have had with law enforcement agencies?  YES

	b.  His USAREC Form 1104-R-E, dated 7 November 2002, shows four questions; all of which contained a computer generated "X" and the applicant’s initials in the "No" block.

		(1)  Have you ever been arrested, charged, cited, held, or detained in any way by any law enforcement agency regardless of disposition?

		(2)  Have you been told by anyone that you do not have to list a charge because the charge(s) were dropped, dismissed, not filed, expunged, stricken from the record or were juvenile related?

		(3)  Have you been subject to any type of proceedings under the Uniform Code of Military Justice?

		(4)  Have you ever been charged with any crime that has not been listed in any of the above questions or asked on the SF 86?

	c.  His SF 86 was signed on 25 April 2003 and shows in item 26 (Your Police Record - Other Offenses (In the last 7 years)) he answered “Yes” and listed the following offenses:


Date
Nature of Offense/Action
8 September 1990
Aggravated Assault/Victim 
24 May 1992
Sex Offense/Victim
4 June 1992
Sex Offense/Victim
27 January 1998
Driving While Suspended/Fine Paid
17 August 1998
Obstruct Legal Process/Fine Paid
26 August 2000
Disorderly Conduct/Fine Paid
6.  His DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows he enlisted in the Regular Army on 25 April 2003.  

7.  His record contains a DA Form 2823 (Sworn Statement) prepared by him on
2 September 2003.  This document states that he told his recruiters about his police records.  The entire recruiting battalion tried to obtain everything from the Kansas and Florida judicial systems and eventually did.  Sergeant first class (SFC) A-----o and Sergeant (SGT) L------n typed in his responses without him being present and when he arrived at the recruiting station, he signed (initialed) the “No” questions.  This form was witnessed by SFC C----n and his immediate commander, captain (CPT) W--d.

8.  On 18 November 2003, his immediate commander notified him that she was initiating separation action on him under the provisions of Army Regulation
635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 7-17, for failing to list his arrest record as required on his enlistment documents.

9.  On 19 November 2003, he consulted with legal counsel and he was advised of the basis for the contemplated separation action for fraudulent enlistment, its effects, and of the rights available to him.  Subsequent to this counseling, he elected not to submit a statement on his own behalf; however he requested:

* consideration of his case by an administrative separation board
* to appear before the separation board
* to consult with counsel

10.  His immediate commander recommended he be separated under the provisions of Army Regulation 635-200, chapter 7-17, by reason of fraudulent enlistment.  Item c (Date of Current Enlistment) of the immediate commander's recommendation for separation memorandum contains the entry "960429"
[29 April 2006] (should be 25 April 2003).  His commander noted that during the course of an Entrance National Agency Check (ENTNAC) investigation,


information was revealed that the applicant failed to list the following arrests that would have disqualified him at the time of enlistment.  She listed the following 11 offenses in addition to three others that were listed on his SF 86:

Date
Offense(s)

5 February 1990
Criminal Damage to Property
May 1993
Battery
January 1994
Indecent liberties with a child; aggravated liberties with a child, criminal sodomy [changed to one count of sexual battery]
April 1995
Contempt of Court

May 1995
Criminal use of and carrying a concealed weapon
May 1995
Battery
March 1997
Not paying a fine
May 1998
Driving while license suspended
January 1998
Unlawful Acts
July 1998
Arrested on a warrant
11.  His record contains a memorandum prepared by Headquarters,
262nd Quartermaster Battalion, dated 25 November 2003 that shows his battalion commander recommended the applicant's separation under the provision of Army Regulation 635-200, chapter 7-17, with issuance of a general discharge.  A waiver of rehabilitative requirements in accordance with Army Regulation 635-200, paragraph 1-18d, was approved.

12.  There is no evidence in the available record to show an administrative separation board occurred; and neither the brigade commander’s endorsement nor the installation commander’s approval are contained in the available record.

13.  His record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was honorably discharged on 9 February 2004.  This form shows in:

* Item 12c (Net Active Service This Period) the entry "0000  09  15"
* Item 12d (Total Prior Active Service) the entry "0000  04  04"
* Item 12e (Total Prior Inactive Service) the entry "0006  10  20"
* Item 25 (Separation Authority) the entry Army Regulation 635-200, Chapter 7, Section V
* Item 26 (Separation Code) the entry "JDA"
* Item 27 (Reentry Code) the entry "3"
* Item 28 (Narrative Reason for Separation the entry "Fraudulent Entry"
14.  On 4 April 2008, he appealed to the Army Discharge Review Board (ADRB) to change the reason for his discharge.  He stated he was discharged under false reasons and the charges listed in his records did not belong to him and he had been fighting to prove his innocence since November 2003.  He submitted a document from the Clerk of Court, Butler County, KS, showing he had no criminal cases in the years 1997, 1998, or 1999.   

15.  On 10 March 2009, the ADRB noted that the separation approval authority’s documentation that waived further rehabilitation efforts and directed his discharge was not part of the available record; therefore, that board applied the presumption of government regularity.  The board further determined he was properly and equitably discharged, and denied his petition for change in his character of service and reason for discharge.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 7-17 provides, in pertinent part, 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.  

17.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), Table 3-1, includes a list of the RA RE codes.

	a.  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  An RE-3, applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

18.  Army Regulation 601-210 also states recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are required to process a request for waiver under the provisions of chapter 4 of this regulation.

19.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the primary purpose of SPD codes is to provide statistical accounting of reasons for separation and are intended exclusively for the internal use of Department of Defense and the military services.  The SPD code of JDA is the appropriate code for Soldiers separating under Army Regulation 635-200, chapter 7, by reason of fraudulent entry.

20.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD codes and corresponding RE codes.  The SPD code of JDA has a corresponding RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code should be changed from RE-3 to RE-1 because his fraudulent entry was not his fault.

2.  His contentions have been noted.  However, the evidence shows he failed to disclose all criminal charges and/or encounters he had with law enforcement officials and within the judicial system.  Failure to disclose such information constitutes fraudulent entry.  

3.  He was properly assigned an RE-3 code based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 7, due to fraudulent entry.

4. In view of the foregoing, he is not entitled to the requested relief.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers.

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)                                         AR20100021886



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ABCMR Record of Proceedings (cont)                                         AR20100021886



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