IN THE CASE OF:	  

		BOARD DATE:	    24 May 2011

		DOCKET NUMBER:  AR20100027901 


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, an upgrade of his 1975 undesirable discharge (UD) and correction to his 1979 discharge.

2.  He states he is not sure of the type of discharges he received.  He didn't do anything wrong and was good at his job.  If he was not so old, he would still be there.  His records will show he received awards.  He needs his benefits to help his family.  

3.  He provides no additional evidence.

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 records show he enlisted in the Regular Army in pay grade E-1 on 30 June 1972, for 4 years.  He did not complete basic combat training (BCT) and advanced individual training (AIT); therefore, he retained his military occupational specialty (MOS) of 09B (trainee).  

3.  He was reported absent without leave (AWOL) on 8 December 1972.  He was dropped from the rolls (DFR) as a deserter on 9 January 1973.  He was returned to military control on 28 February 1973.  

4.  On 13 March 1973, he was convicted by a summary court-martial of one specification of AWOL from 8 December 1972 to 28 February 1973.  He was sentenced to a forfeiture of $95.00 pay for 1 month.  On 14 March 1973, the convening authority approved the sentence and ordered it executed.  

5.  He was again reported AWOL and DFRd on 21 March 1973.  He was returned to military control on 20 June 1973 and placed in confinement on
22 June 1973.

6.  He was again reported AWOL on 6 August 1973.  He was returned to military control and restarted BCT on or about 3 December 1973.  

7.  On 14 January 1974, he was convicted by a special court-martial of one specification of AWOL from 6 August to 3 December 1973.  He was sentenced to confinement at hard labor for 45 days (suspended for 6 months) and a forfeiture of $150.00 pay per month for 3 months.  On the same day, the convening authority approved the sentence and ordered it executed.  

8.  He was further reported AWOL on 4 February 1974 and DFRd on the same day.  He was returned to military control and restarted BCT on 3 June 1974.  He was again reported AWOL on 27 July 1974 and DFRd on 1 August 1974.  He was returned to military control on 25 March 1975.

9.  On 9 May 1975, his suspended sentence to confinement at hard labor was vacated.

10.  It appears that on or about 3 June 1975 court-martial charges were preferred against him for one or more specifications of AWOL.

11.  On 3 June 1975, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA).  He waived his rights and elected not to submit a statement in his own behalf.

12.  On 9 July 1975, the appropriate authority approved his request for discharge for the good of the service and directed the issuance of a UD and reduction to the lowest enlisted grade.

13.  He was discharged accordingly in pay grade E-1 on 31 July 1975.  He was credited with completing 10 months and 7 days of active service and 815 days of lost time.  His service was characterized as under conditions other than honorable and he was issued a UD.

14.  There is no evidence he requested assistance through his chain of command for any personal problems which prevented him from completing his period of service.  His records are absent any evidence of awards for meritorious achievement or performance during this period of service.

15.  He again enlisted in the Regular Army in pay grade E-1 on 15 June 1976, for 3 years.

16.  He was reported AWOL on 6 September 1976 and DFRd on 15 September 1976.  He was returned to military control on 20 May 1977.  He completed AIT and was awarded military occupational specialty 11C (Indirect Fire Infantryman)

17.  On 7 June 1977, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 6 to 15 September 1976 and from 15 September 1976 to 20 May 1977.

18.  On 15 July 1977, he accepted NJP under Article 15, UCMJ, for being AWOL from 5 to 8 July 1977.  

19.  He was promoted to pay grade E-4 on 28 July 1978.

20.  On 11 July 1979, the appropriate separation authority voided his 1976 enlistment under the provisions of Army Regulation 635-200, paragraph 
14-15a(1), based on his concealment of his 1975 discharge under other than honorable conditions.

21.  Accordingly, he was released from control of the Army in pay grade E-4 on 18 July 1979 under the provisions of Army Regulation 635-200, paragraph
14-5a(1).  His time served during this period was voided.  

22.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his 1975 discharge within its 15-year statute of limitations.

23.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 stated a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits,
and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UD would normally be furnished an individual who was discharged for the good of the Service. 

24.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

25.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

26.  Army Regulation 635-200, chapter 14, section II, established policy and prescribes procedures for separating members for fraudulent enlistment.  Fraudulent entry was the procurement of an enlistment through any deliberate material misrepresentation, omission, or concealment which, if known and considered by the Army at the time of enlisted, might have resulted in rejection.  This included all conditions that would have been disqualifying without a waiver.  Commanders would determine if the information was in fact disqualifying.  If newly revealed information did not amount to a disqualification then there was no fraudulent entry.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) would be prepared and distributed in accordance with Army Regulation 635-5, paragraph 2-7d, to all individuals released from custody and control due to voided service.  All service performed under a fraudulent enlistment was considered null and void.

27.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the preparation of separation documents.  The regulation stated when members are released from custody and control of the Army because of a void or voided enlistment, "Release from Military Control" would be entered in Item 9a (Type of Separation); "Not Applicable (NA)" in Item 9e (Character of Service);  "NA" in Item 12 (Command to Which Transferred); a zero in the year, month, and day block of Items 18 (Record of Service) a through c; and "Time served in a voided enlistment is not creditable for promotion or longevity" would be entered in Item 27 (Remarks)."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, during his period of service from 30 June 1972 to 31 July 1975, he was punished by a summary and special courts-martial for being AWOL and had accumulated 815 days of AWOL. Upon his return to military control from his last period of AWOL in 1975, he voluntarily requested discharge in lieu of trial by court-martial.  He also acknowledged he could receive a UD and could be deprived of many or all Army benefits as a result of the issuance of such a discharge.  The convening authority approved his request for discharge for the good of the service and directed issuance of a UD Certificate and reduction to the lowest enlisted grade. Accordingly, he was discharged in pay grade E-1 on 31 July 1975, under the provisions of Army Regulation 635-200, chapter 10.

2.  The evidence of record does not show and he provided no evidence to show his 1975 UD should be upgraded and that it was unjust.  His military records contain no evidence which would entitle him to an upgrade of his 1975 discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge in 1975.

3.  Without evidence to the contrary, it appears his 1975 administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in 1975 in accordance with pertinent regulations with due process.

4.  He also requests, in effect, a change to his 1979 discharge.  The evidence of record shows he again enlisted in the Regular Army on 15 June 1976.  On 11 July 1979, it was directed his 1976 enlistment be voided under the provisions of Army Regulation 635-200, paragraph 14-5a(1), based on his concealment of a 
non-waivable disqualification upon his entry into the United States Army.  It is also noted that upon being notified of the proposed elimination action, he was afforded the opportunity to submit statements in his own behalf and appear before a board of officers.  There is no evidence he did so.

5.  He was released from the custody and control of the Army and his DD Form 214 was prepared in accordance with applicable regulations when service was voided.  The Office of the Judge Advocate General has opined in previous cases of this nature that because an applicant’s enlistment was void ab initio for fraud, the applicant never acquired military status, and therefore, his DD Form 214 correctly reflected no active service.  He was properly released for fraudulent enlistment under regulations in effect at the time and the action was not contrary to existing law.  Since the Army chose not to waive the defect in his enlistment, the enlistment was voided.  He is therefore not entitled to, as a matter of law, the relief requested.

6.  In view of the facts and circumstances in this case, there is no basis for granting his requests for an upgrade of his 1975 UD or for a change to his 1979 release from the custody and control of the Army to a general discharge.  The evidence of record clearly shows his 1979 release from the Army was based on his fraudulent reenlistment.  Therefore, there is no error or injustice.

7.  His desire to have his UD upgraded and release from the custody and control of the Army changed so that he can qualify for medical and/or other benefits administered by the VA and other Federal and State social services organizations is acknowledged; however, relief is not granted solely for the purpose of an applicant qualifying for benefits administered by those agencies.

8.  In view of the foregoing, there is no basis for granting his requested relief.

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)                                         AR20100027901



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ABCMR Record of Proceedings (cont)                                         AR20100027901



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