BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110002946


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 an upgrade of his uncharacterized discharge to a general discharge.  

2.  He states he cannot receive health benefits with an uncharacterized discharge.  The Adjutant General told him that he would receive a general discharge.  

3.  He provides:

* statement regarding benefits under Title 38, Code of Federal Regulations, section 3.14
* letter from the Central Arkansas Veterans Health Care System
* self-authored statement
* degree of Associate of Applied Science in Electronics Technology
* Arkansas College of Technology Dean’s List award

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.  His service record contains a court document, dated 8 May 1979, which shows he was found guilty of armed robbery in the Superior Court, Cobb County, GA.  He was sentenced to 5 years in the penitentiary.  He was given 2 years to serve and 3 years probation.  

3.  He was awarded a degree of Associate of Applied Science in Electronics Technology on 11 April 1987.  He provided a certificate which shows he was on the Dean’s List at the Arkansas College of Technology with a grade point average of 4.0 for the Fall Quarter of 1987.  

4.  The applicant enlisted in the Regular Army on 2 October 1990 for a period of 4 years.  Block 35 (Law Violations) of his DD Form 1966/3 (Record of Military Processing - Armed Forces of the United States) or block 39 (Remarks) does not list his felony of armed robbery in 1979.  

5.  His service record contains a Department of Defense, Report of Investigation, dated 18 October 1990, which revealed he was arrested on 13 January 1979 and charged with criminal attempt of armed robbery.  

6.  On 19 March 1991, his unit commander notified him of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 7-17, by reason of fraudulent entry.  He was advised of his rights.  

7.  He acknowledged receipt of the proposed separation action, consulted with legal counsel, and did not submit statements in his own behalf.  

8.  The unit and intermediate commanders recommended the applicant be retained on active duty.

9.  The separation authority disapproved the recommendation for retention and directed that the applicant be discharged from the Army under the provisions of Army Regulation 635-200, paragraph 7-17b(3) for fraudulent entry with an entry level status uncharacterized discharge.  

10.  On 13 May 1991, he was discharged under the provisions Army Regulation 635-200, paragraph 7-17b(3) by reason of fraudulent entry.  He completed 7 months and 12 days of active military service.  
11.  In a 23 January 2011 letter, the Central Arkansas Veterans Health Care System informed him that he was ineligible for health care at this facility because he failed to provide documentation of his honorable discharge from a period of regular active military service.  

12.  He submitted a self-authored statement in which he described his work history, family’s military history, educational background, and the events which led to his discharge.  He stated that:  

* he informed a recruiter about his attempted armed robbery that he had committed as a teenager along with other offenses
* the recruiter requested a waiver that was denied
* no record was found of attempted armed robbery because he was under the Youthful Offenders Act and First Offenders Act
* the recruiter suggested that he wait 3 months and try another branch of service and that he not disclose this information
* he was accepted into the Army
* he was separated for fraudulent entry
* he’s unable to work due to a neck injury he sustained during basic training
* he is ineligible for health benefits with an uncharacterized discharge 

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

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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 civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions.  If in an entry-level status the characterization of service will be uncharacterized.  

	b.  Separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, before the date of the initiation of separation action, completed no more than 180 days of continuous active duty, and demonstrated that they could not or would not adapt socially or emotionally to military life.  
	c.  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.

   d.  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.

	e.  The wi-recordcheck.org website stated the Youthful Offenders Act is when a person is under the age of 21 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum penalty is imprisonment for 1 year or less in the county jail, the court may order at the time of sentencing that the court record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.

	f.  The Arkansas.gov website states the First Offender Act applies to first offenders who are placed on probation and who are eligible for expungement upon successful completion of their probation term.  In general, it has not changed significantly since its original enactment.  The standards do not affect it.  It can only be used once.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he cannot receive health benefits with an uncharacterized discharge is acknowledged.  However, health benefits are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  He contends that the Adjutant General told him that he would receive a general discharge.  However, his service record is void of evidence to support his claim.  

3.  He was discharged from military service under the provisions of Army Regulation 635-200, paragraph 7-17 for fraudulent entry.  Prior to enlistment, he had been arrested and found guilty of armed robbery in 1979.  However, when he completed and signed his enlistment contract he did not indicate he had been arrested or convicted of this offense.  
4.  His unit and intermediate commanders recommended that he be retained on active duty; however, the separation authority denied the recommendation and directed that the applicant be separated with an entry level status uncharacterized discharge.  

5.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  

6.  His service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request.

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)                                         AR20090010900



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ABCMR Record of Proceedings (cont)                                         AR20110002946



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