BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100027637 


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 under other than honorable conditions (UOTHC) discharge be upgraded.  

2.  He states he:

* grew up in a violent neighborhood in Cincinnati, OH 
* was young and immature
* has played a major role in the success of his five children
* has been trouble free since the early 1990’s 

3.  He provides three character references.  

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 was born on 18 April 1960 and enlisted in the U.S. Army Reserve on 17 April 1981 under the delayed entry program at almost age 21.  In Block 36 (Involvement with Police or Judicial Authorities) of his DD Form 1965/5 (Record of Military Processing – Armed Forces of the United States), he initialed the entry “No” in items a through f indicating he had not been involved with police or judicial authorities.  

3.  He enlisted in the Regular Army on 21 April 1981; however, his DD Form 214 (Certificate of Release or Discharge from Active Duty) erroneously reflects that he entered active duty on 17 April 1981.  

4.  His disciplinary history includes acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on five occasions for the following offenses:

* disobeying a lawful order from a noncommissioned officer (NCO) 
* being disrespectful in language towards an NCO
* assaulting an NCO 
* failing to go to his appointed place of duty
* being derelict in the performance of his duties

5.  His disciplinary history also includes numerous adverse counselings for failure to repair and failure to prepare for inspection.  

6.  On 13 January 1982, he was barred from reenlistment based on two of the above nonjudicial punishments and nine adverse counseling statements.  

7.  His service record contains a DA Form 2496 (Disposition Form), dated 9 February 1982, that shows when he joined the Army, an Entrance National Agency Check (ENTAC) was initiated to determine his eligibility for enlistment.  The ENTAC revealed numerous arrests between September 1978 and May 1981 that were not listed on his enlistment contract.  

8.  On 12 March 1982, his unit commander notified him of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, based on misconduct - fraudulent entry due to concealment of a civil conviction at time of enlistment.  He was advised of his rights.  



9.  He consulted with legal counsel, requested consideration of his case by a board of officers, requested a personal appearance before a board of officers, and did not submit statements in his own behalf.  

10.  On 24 May 1982, a board of officers met and recommended that the applicant be discharged from the service because of misconduct with the issuance of a UOTHC Certificate.  

11.  The separation authority directed that the applicant be discharged from the Army under the provisions of chapter 14, Army Regulation 635-200 by reason of fraudulent entry, concealment of a civil conviction with the issuance of a UOTHC Discharge Certificate.  

12.  On 15 July 1982, he was discharged under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct - fraudulent entry.  He completed 1 year, 2 months, and 29 days of active military service.  

13.  He provided character references from his wife, a friend, and his sister-in-law who described how he has matured over the years and his dedication to his family.  

14.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.  

15.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct.  Paragraph 14-5(1) states that the commander exercising general court-martial jurisdiction will void the fraudulent entry by issuing orders releasing the member from Army control for fraudulent entry.  A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under this chapter may be awarded an honorable discharge, a general discharge, or a UOTHC discharge.
   
   
   
   
   b.  Paragraph 3-7a 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.

   c.  Paragraph 3-7b provides that a general discharge 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 honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions in regard to his life growing up in Cincinnati, youth and immaturity, and his major role in the success of his five children are acknowledged.  However, these issues are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  He was discharged from military service under the provisions of Army Regulation 635-200, chapter 14 for misconduct – fraudulent entry.  Prior to his enlistment, he had been convicted by civil authorities.  However, when he completed and signed his enlistment contract he indicated he had never been arrested or convicted.  He had further incidents of misconduct while he was in the Army.

3.  In accordance with Army Regulation 635-200, due to the applicant's concealment of civil convictions his commander was required to discharge him from the military.  Therefore, he was separated from the military under the provisions of Army Regulation 635-200, chapter 14 for misconduct – fraudulent entry.  

4.  His character references are acknowledged.  However, they are not sufficiently mitigating to warrant relief in this case.

5.  The evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for upgrading his service to either an honorable or general discharge.  






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)                                         AR20100027637



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ABCMR Record of Proceedings (cont)                                         AR20100027637



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