IN THE CASE OF:	  

		BOARD DATE:	      14 April 2011

		DOCKET NUMBER:  AR20100025204 


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 under other than honorable conditions discharge.

2.  The applicant states he informed his recruiter of his prior service in the U.S. Marine Corps (USMC) and was told by his recruiter "not to worry about it."  He states that due to this discharge he is not entitled to any Department of Veterans Affairs benefits.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a 3-page self-authored letter 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.  On 18 February 1970, the applicant was discharged from the USMC with an honorable discharge for not being medically qualified.

3.  The applicant's records show he enlisted in the Regular Army at 19 years of age for a period of 3 years on 14 June 1971.  The applicant did not complete basic combat training.  The applicant's record did not indicate any reason for not completing basic combat training. 

4.  On 29 July 1971, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) by reason of fraudulent enlistment due to failing to disclose his prior service in the USMC.  The immediate commander recommended that the applicant receive a general discharge.

5.  On 30 July 1971, the applicant acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and personal appearance before a board of officers.   He further acknowledged he understood he may encounter substantial prejudice in civilian life if a discharge under conditions other than honorable were issued and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

6.  The applicant stated he enlisted in the Army because his half-brother was enlisting and he had a sincere desire to do his part for his country.  He further stated he disclosed to his recruiter that he had prior service in the USMC, but he was discharged for medical reasons.  He said his recruiter stated, "take your discharge and put it as far back as possible."

7.  On 4 August 1971, the battalion commander recommended approval of the discharge in accordance with Army Regulation 635-206 for fraudulent enlistment with an issuance of a general discharge.

8. On 9 August 1971, the brigade commander recommended approval of the discharge in accordance with Army Regulation 635-206 for fraudulent enlistment with an issuance of an undesirable discharge.

9.  On 31 August 1971 in a written memorandum after having a personal interview with the applicant, the battalion commander stated he could not recommend an honorable discharge in this instance and he felt the applicant was partially, if not totally, responsible for his improper actions.  He also stated he did not feel the facts and circumstances which were available to him justified an other than honorable conditions discharge.

10.  On 5 October 1971, the separation authority approved the applicant's discharge under the provisions of section V of Army Regulation 635-206 and directed that the applicant be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 13 October 1971.  The DD Form 214 he was issued confirms he was separated with an under other than honorable conditions discharge.  This form further confirms he completed a total of 2 months and 18 days of active service.

11.  Army Regulation 635-206, in effect at that time, set forth the authority for the separation of enlisted personnel for misconduct.  Section II prescribed procedures for processing fraudulent-entry cases for misconduct by reason of fraudulent entry into the service.  It also stated that fraudulent entry is the procurement of an enlistment, induction, or period of service through any deliberate material misrepresentation, omission, or concealment, which if known might have resulted in rejection.  Any incident which met the foregoing could be cause for discharge for fraudulent entry.  An undesirable discharge was normally considered appropriate unless the particular circumstances of the case warranted an honorable or general discharge.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge under other than honorable conditions should be upgraded was carefully considered and found to have merit.

2.  The applicant failed to provide any independent evidence to corroborate his claims of informing his recruiter of his prior service.  

3.  It is noted that the applicant was medically qualified for entrance in the U.S. Army despite his discharge from the USMC for not being medically qualified. Additionally, the battalion commander recommended that some mitigation should be provided to the applicant and he should not receive an undesirable discharge. However, he also felt that the applicant was partially, if not totally, responsible for his improper actions.

4.  In view of the foregoing and in the interest of justice, it would be appropriate to grant the applicant relief and upgrade his character of service from under other than honorable conditions to general under honorable conditions.  However, his overall conduct and improper actions prohibits granting a fully honorable characterization of service.

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:

	a.  voiding the under other than honorable conditions discharge now held by the applicant;

	b.  showing the applicant was discharged from the service with a general under honorable conditions characterization of service on 13 October 1971.



      _______ _ 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)                                         AR20100025204



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ABCMR Record of Proceedings (cont)                                         AR20100025204



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