BOARD DATE:	  22 September 2011 

		DOCKET NUMBER:  AR20110006332 


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 that his undesirable discharge be upgraded to a fully honorable discharge.

2.  The applicant states he did not want his little brother to be drafted so he tried to take his place and got caught.  He goes on to state he did not realize the ramifications it would later have on his family and his life.  He also states he made a serious mistake and humbly requests to have his discharge upgraded.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 Regular Army in El Paso, Texas, on 13 January 1966 for a period of 3 years and assignment to Korea.  He enlisted using his brother's name and concealing an extensive criminal record.  He was transferred to Fort Bliss, Texas, to undergo basic training.

3.  On 17 March 1966, he was absent without leave (AWOL) and rented a motel room into which he invited two guests who robbed him of all of his monies to the extent that he could not pay his motel bill.  He surrendered to civil authorities on 20 March 1966 and revealed at that time that he had enlisted under his brother's name to avoid being denied enlistment due to his police record as he had been denied enlistment five times previously because of his record.

4.  He was AWOL again on 23 April 1966 and was apprehended by the El Paso police on 24 April 1966 for failure to pay a taxi fare.  Nonjudicial punishment was imposed against him on 3 May 1966 for being absent from 23 to 24 April 1966.

5.  On 7 May 1966, the applicant's commander initiated action to discharge him from the service under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) for fraudulent enlistment.  He advised the applicant of his rights and informed him that he was recommending an undesirable discharge.

6.  On 10 May 1966 after being advised of his rights, the applicant waived his right to appear before a board of officers and declined to submit a statement in his own behalf.

7.  On 27 June 1966, the appropriate authority (a major general) approved the recommendation for discharge and directed issuance of an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged under other than honorable conditions on 12 July 1966 under the provisions of Army Regulation 635-206 due to fraudulent enlistment.  He completed 5 months and 28 days of active service and was still in a trainee status.

9.  On 26 July 1972, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The applicant was granted a personal appearance before the ADRB on 21 September 1973 and was represented by counsel.  After reviewing all of the available evidence and testimony given during the hearing, the ADRB determined that his discharge was proper and denied his request for an upgrade.

10.  Army Regulation 635-206, in effect at the time, set forth the basic authority for separation of personnel for misconduct.  Section V provided that individuals who concealed information that would serve as a disqualification at the time of enlistment were subject to be discharged.  Categories in this regulation included fraudulent entry, conviction by civil court, AWOL, and desertion.  An undesirable discharge was normally considered appropriate.

11.  Paragraph 3-7a of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.

12.  Paragraph 3-7b of Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to the facts and circumstances surrounding his discharge.  The applicant's administrative discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of any of his rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.  Given the circumstances in this case and his overall undistinguished record of service, his discharge appropriately characterizes the period of service in question.

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)                                         AR20110006332



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ABCMR Record of Proceedings (cont)                                         AR20110006332



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