IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100027349 


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 his undesirable discharge (UD) be upgraded to a general discharge (GD) under honorable conditions.

2.  The applicant states after serving honorably for more than 2 years he was honorably separated by reason of hardship due to the illness of his brother.  He states after the death of his brother he was not coping well and he married.  After 2 weeks he and the girl realized the marriage was a mistake with the understanding that she would file for divorce.  He claims he believed she followed through with the divorce and rejoined the Army as a single man.  He states that at some point his ex-wife contacted the Army claiming they were still married.  Three weeks into his second enlistment he was called into his commander's office and given the discharge under other than honorable conditions (UOTHC) without further discussion.

3.  The applicant states he was never afforded the opportunity to explain his situation or given the opportunity to consult with counsel.  He states he was given the UOTHC discharge for fraudulent enlistment and even though the enlistment was fraudulent, it was not intentional.  He claims he never saw the girl again although the divorce was finalized a year later.

4.  The applicant states the upgrade of his discharge makes no difference to the benefits he is eligible for and he is making this request as a matter of principle and to correct an injustice for which he is partially to blame.



5.  The applicant provides the following documents in support of his application:

* self-authored statement
* divorce decree
* DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 7 June 1955
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 1 April 1958

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's military record is not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the FSM's records were lost or destroyed in that fire.  This case is being considered using the DD Forms 214 and other documents provided by the applicant.

3.  The applicant's 7 June 1955 DD Form 214 shows he enlisted in the Regular Army (RA) on 30 April 1953 and held and served in military occupational specialty 4405 (Wheel Vehicle Mechanic).  It also shows he earned the National Defense Service Medal and Army Good Conduct Medal during his active duty tenure.  It further shows he was honorably separated in the rank of private/E-2 by reason of hardship on 7 June 1955 after completing 2 years, 1 month, and 14 days of active duty service.

4.  There is no separation packet in the NPRC file containing the facts and circumstances surrounding the applicant's 1 April 1958 discharge.  There is a properly-constituted DD Form 214, dated 1 April 1958, on file that contains the authority and reason for the applicant's discharge.

5.  The applicant's 1 April 1958 DD Form 214 shows he again enlisted in the RA on 2 January 1958.  It further shows that after serving for 3 months, he was discharged UOTHC under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) by reason of fraudulent entry.

6.  The applicant provides a divorce decree that shows he was divorced on 12 May 1959.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.

8.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section I prescribed the standards and procedures for processing cases of fraudulent enlistment.  A UD was normally considered appropriate for members separating under this provision of the regulation.  The separation authority could issue an honorable discharge (HD) or a GD if warranted based on the member's record of service.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the current Army policy for enlisted separations.  Paragraph 3-7b provides that a GD is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded has been carefully considered.  However, there is insufficient evidence to support his contention.

2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's final discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The applicant's DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-206 by reason of fraudulent enlistment.  In connection with such a discharge, there must be evidence the applicant fraudulently entered military service.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The UD he received was normal and appropriate under the regulatory guidance in effect at the time and the documents provided fail to show his service during the enlistment under review was sufficiently meritorious to support the issuance of a GD by the separation authority at the time or that it supports an upgrade of his discharge now.  By his own admission, an upgrade of his discharge would provide no change in his benefit status.

5.  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 has failed to submit evidence that would satisfy this requirement.

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 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)                                         AR20100027349



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ABCMR Record of Proceedings (cont)                                         AR20100027349



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