IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100029971 


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 correction of his uncharacterized discharge.

2.  The applicant states he was treated like a convicted felon.  He was never convicted of any crime; his arrest record was sealed.  As a result, he was advised by his recruiter to not mention his arrest record.

3.  The applicant provides a self-authored statement.

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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program on 25 April 1994.  He was discharged from the USAR and enlisted in the Regular Army on 16 June 1994 in the rank private first class/E-3.  The applicant completed basic combat training and was assigned to Company P, 266th Quartermaster Battalion, for advanced individual training in military occupational specialty 94B (Food Service Specialist).

3.  On 9 December 1994, the applicant was informed that separation procedures were initiated to separate him from the service for neglecting to list his entire arrest record in his enlistment documents.

4.  On 12 December 1994, the applicant was advised by consulting counsel of the basis for the contemplated action to separate him for fraudulent enlistment under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 7, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.

5.  On 15 December 1994, the separation authority approved the applicant's discharge and directed that he receive an uncharacterized discharge.  On 20 December 1994, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 6 months and 5 days of active service during this period.

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

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 7-17 provides that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  A Soldier who concealed his or her conviction by a civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under chapter 7 may be awarded an honorable discharge, a general discharge, or a discharge under other than honorable conditions.  If a Soldier is in an entry-level status, the characterization of service will be uncharacterized.

8.  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.

9.  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.

10.  Army Regulation 635-200 defines entry-level status as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge should be corrected was carefully considered and it was determined that there is insufficient evidence to support his request.

2.  Although the applicant alleges his recruiter advised him to claim he had never been arrested, there is no evidence in his military records and the applicant has not provided sufficient evidence to support this contention.  Therefore, this argument is not sufficient to support his request to correct his discharge.

3.  The applicant's records show he neglected to list his entire arrest record on his enlistment documents.  Therefore, the applicant's enlistment was deemed fraudulent.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his characterization of service.

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)                                         AR20100029971



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ABCMR Record of Proceedings (cont)                                         AR20100029971



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