BOARD DATE:	  2 June 2011 

		DOCKET NUMBER:  AR20100028095 


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 discharge be upgraded from other than honorable.

2.  The applicant states he had prior service and he wanted to serve again.  He did not intend to falsify information; he just did not think of his incarceration between the periods of service.

3.  The applicant provided 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 records show he enlisted in the Regular Army on 24 June 1981 and he held military occupational specialty 76Y (Unit Supply Specialist).  He was assigned to the 1st Battalion, 18th Field Artillery, Germany.
3.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record) contains the following entries: 

* 9 - 18 November 1981, absent without leave (AWOL)
* 13 - 17 January 1982, AWOL
* 2 - 13 February 1982, AWOL
* 19 February - 14 March 1982, imprisonment 

4.  On 19 February 1982, he was convicted by a summary court-martial of two specifications of being AWOL from on or about 13 - 18 January 1982 and from on or about 2 - 14 February 1982.  He was sentenced to confinement for 30 days and reduction in rank/grade to private/E-1.  He was confined at the U.S. Army Training Brigade, Fort Riley, KS.

5.  On 26 March 1982, he was notified by his commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, due misconduct and fraudulent entry.  The commander stated when the applicant enlisted in the Army he indicated he had no prior service or prison sentence.  However, the applicant admitted he previously served in the U.S. Marine Corps from November 1975 to January 1976 and he served 3 years at Washington State Correctional Center, Shelton, WA, from August 1977 to August 1980, for robbery.

6.  On 30 March 1982, he acknowledged notification of his proposed discharge from the Army.  Subsequently, he consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of an other than honorable discharge; and of the procedures and rights that were available to him.  He further acknowledged he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

7.  On 6 April 1982, the separation authority approved his discharge under Army Regulation 635-200, chapter 14, for misconduct - fraudulent entry and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

8.  On 12 April 1982, he was discharged from the Army.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - fraudulent entry.  This form also shows in:



* Item 12c (Net Active Service This Period) - the entry "00 00 00"
* item 24 (Character of Service) - the entry "NA" (not applicable)
* item 26 (Separation Code) - the entry "JKG"

9.  Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for processing fraudulent entry cases and provided for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the service.  Section II pertained to incident of fraudulent entry.  It stated that fraudulent entry was the procurement of an enlistment, induction, or period of active 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.  All service performed under a fraudulent enlistment was considered null and void.

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  The characterization or description of service is determined by directives authorizing separation.  The version of the regulation in effect at the time stated that for a Soldier being released from the custody and control of the Army due to a fraudulent void enlistment, "NA" would be entered in item 24 of the DD Form 214.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation in effect at the time showed that SPD "JKG" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Fraudulent Entry" and the authority for discharge under this SPD was “chapter 14 of Army Regulation 635-200."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant falsified his enlistment documents by not disclosing his previous service in the Marine Corps or his 3 year confinement in a state prison.  Accordingly, his commander initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.  He was assigned the proper separation code and authority for separation.  The appropriate character of service associated with this type of discharge at the time was "NA" which is correctly shown on his DD Form 214.  There is neither an error nor an injustice. 

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)                                         AR20100028095





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ABCMR Record of Proceedings (cont)                                         AR20100028095



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