IN THE CASE OF:
BOARD DATE: 13 September 2011
DOCKET NUMBER: AR20110004518
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, that item 18a (Net Service This Period) be corrected to show he completed 2 months and 11 days of service. He also requests that item 9e (Character of Service) be corrected to show entry level separation.
2. The applicant states due to a clerical error the proper time in service was not noted.
3. The applicant provides a Department of Veterans Affairs (VA) letter, dated
28 February 2011, in support of his application.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants record shows he enlisted in the Regular Army on 10 February 1977.
3. On 28 February 1977, a Deputy Probation Officer, Los Angeles, California, informed the applicants recruiter that the applicant fraudulently enlisted. The applicant was granted probation on 30 March 1976, for taking a motor vehicle without the owners consent. His probation would expire on 29 March 1978. Upon the court learning of the applicants fraudulent enlistment, his probation was revoked, and a bench warrant was issued for his arrest.
4. On 22 March 1977, the unit commander notified the applicant that discharge proceedings were being initiated on him under the provisions of chapter 14, Army Regulation 635-200, by reason of fraudulent enlistment.
5. The applicant consulted with legal counsel and was advised of the basis for the contemplated discharge, its effects, and of the rights available to him. Subsequent to receiving this legal counsel, the applicant waived his right to consideration of his case by a board of officers, his right to appear before a board of officers, and he elected not to submit a statement in his own behalf.
6. On 11 April 1977, the separation authority voided the applicants enlistment in accordance with paragraph 14-4d, Army Regulation 635-200, by reason of fraudulent entry. On 21 April 1977, the applicant was discharged accordingly. The DD form 214 he was issued contains the entry time served during this period of voided enlistment is not creditable for promotion or longevity in item 27 (Remarks).
7. Army Regulation 635-200 sets for the basic authority for the separation of enlisted personnel on active duty. Chapter 14, in effect at the time, contained the policy and outlined the procedures used in separating individuals for fraudulent entry. It provided, in pertinent part, 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 may be cause for discharge for fraudulent entry. Paragraph 14-12g stated the fraudulent entry will be voided when the individual is in a status of unauthorized absence or desertion. In similar cases, the office of The Judge Advocate General has opined that when an enlistment is voided (ab initio) for fraud, individuals never acquired military status therefore the DD Form 214 should reflect no active service.
DISCUSSION AND CONCLUSIONS:
1. The applicants request to correct items 9e and item 18a of his DD Form 214 has been carefully considered. However, the evidence of record confirms the applicants separation processing was accomplished in accordance with the governing regulation in effect at the time. All requirements of law and regulation were met and the applicants rights were fully protected throughout the separation process.
2. By regulation, the separation authority may waive the defect in the applicants enlistment and direct retention, or may void the fraudulent entry. In this case, since the Army chose not to waive the defect in the applicants enlistment, the enlistment was void. Therefore, the applicant was properly separated for fraudulent enlistment under regulations in effect at the time, the separation is not contrary to existing law, and there is an insufficient evidentiary basis to support granting the 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) AR20110004518
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