BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110017271 


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 voided enlistment be upgraded to an honorable discharge.

2.  He states he was 1 of 7 out of 250 Soldiers promoted to the grade of E-2 in basic training.  He adds that he served honorably.

3.  He provides his DD Form 214 (Report of Separation from Active Duty).

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.  On 15 June 1976, the applicant executed an enlistment contract entering the U.S. Army Reserve (USAR) Delayed Entry/Enlistment Program.  He was discharged from the USAR on 20 June 1976 for the purpose of immediate enlistment in the Regular Army.  On 21 June 1976, he enlisted in the Regular Army.

3.  During the enlistment process, he completed section IV (Other Background Data) of the DD Form 1966 (Application for Enlistment – Armed Forces of the United States).

	a.  He answered "No" to item 37c (Have you ever been involved in the use, purchase, possession, or sale of marijuana, lysergic acid diethylamide, or any harmful or habit-forming drugs and/or chemicals except as prescribed by a licensed physician?)

	b.  He responded "Yes" to the following questions in item 40 (Involvement with Police or Judicial Authorities):

		(1)  item 40a (Have you ever been arrested, charged, cited (including traffic violations), or held by any law-enforcement or juvenile authorities in the United States or in a foreign country regardless of whether the citation or charge was dropped or dismissed or you were found not guilty?) and

		(2)  item 40b (As a result of being arrested, charged, cited, or held by law-enforcement or juvenile authorities, have you ever been convicted, fined or forfeited bond, or adjudicated a youthful offender or juvenile delinquent (regardless of whether the record in your case has been "sealed," expunged, or otherwise stricken from the court record?).

	c.  In item 40g, he provided specific information pertaining to his responses to items 40a and 40b.  He listed a speeding offense and indicated he had been fined $15.00.  The instructions for item 40g state to "include all incidents with law-enforcement authorities that you discussed with your recruiter."

4.  He signed section V (Certification) of the DD Form 1966 indicating the information he provided was true, complete, and correct to the best of his knowledge.  He also acknowledged that if any of the information was knowingly false or incorrect he could be tried in a civilian or military court and could receive a less than honorable discharge which could affect his future employment opportunities.

5.  The applicant's Federal Bureau of Investigation record check revealed that he was charged with eight offenses.  The record does not clearly show the disposition of four of the charges.  The charges and disposition (where available) are as follows:

* 23 June 1971, illegal possession of heroin and a hypodermic needle and syringe
* 8 July 1971, being present where narcotic drugs were found (dismissed)
* 27 August 1971, illegal possession of heroin and illegal possession of heroin to sell
* 12 October 1972, received stolen property (superior court)
* 19 October 1971, breaking and entering with the intent to commit a felony
* 30 October 1972, forgery (20 days of observation)
* 25 July 1973, forgery
* 14 November 1975, trespassing (20 days – specific disposition not shown)

6.  On 27 September 1976, the company commander notified the applicant of his intent to recommend his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, due to fraudulent enlistment – concealment of a conviction by civil court.

7.  On an unspecified date, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he elected to submit a statement on his behalf.  He requested to be retained in the Army.  He said he felt he had done well and promised to continually try his best during his enlistment and civilian life.  He also stated it was his chance to clean up his past and he had every intention of living a clean life.  He requested to be allowed to remain in the Army and promised to work hard to show he was no longer an "unlawful individual."

8.  On 18 October 1976, the separation authority directed the issuance of orders to void the applicant's enlistment under the provisions of Army Regulation 
635-200, paragraph 14-4d, concealment of a civil conviction.  He stated that recruiter connivance was indicated.

9.  His DD Form 214 shows he was discharged on 21 October 1976 under the provisions of Army Regulation 635-200, chapter 14, by reason of a void enlistment.  The character of service in item 9e is listed as "DNA" indicating it does not apply.  He was credited with 6 days of prior inactive service.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, provided 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.  The regulation stated that a member who concealed his conviction by civil court of a felonious offense normally would not be considered for retention.  For members separated under this chapter, the fraudulent entry was to be voided by issuing orders releasing the member from Army control for fraudulent entry in all cases involving alleged or verified connivance by recruiting officials.

11.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214.  This regulation stated the DD Form 214 was a summary of a Soldier's most recent period of continuous active duty.  It provided a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Paragraph 2-7 required the preparer to enter "NA," indicating not applicable, in item 9e when members were released from custody and control of the Army because of a void or voided enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with eight offenses prior to enlisting and it appears he was convicted of one of the offenses.  This information was not provided on his DD Form 1966 as required and this form was certified with his signature.  The penalties for omitting information on the DD Form 1966 were clear.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  His contention that he served honorably is noted.  Notwithstanding this contention, the record shows his service was not characterized because he was separated by reason of a void enlistment.  As a result, his DD Form 214 properly shows that character of service was not applicable in this case.

3.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110017271



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ABCMR Record of Proceedings (cont)                                         AR20110017271



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