IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110018402 


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 DD Form 214 (Report of Separation from Active Duty) to show his 6 months of active duty.

2.  The applicant states that even though his enlistment was voided, his 6 months of active duty should count.

3.  The applicant provides his DD Form 214.

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 on 24 February 1978.

3.  On 19 July 1978, he signed a sworn statement stating he did not tell his recruiter that he had been in prison because he knew he would not be able to enlist if he admitted having been in jail.

4.  In an undated memorandum, the applicant's commander notified him he was initiating action to recommend his separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel),
paragraph 14-4, for fraudulent entry by reason of concealing a conviction by civil court.

5.  Having been advised by legal counsel, the applicant requested consideration of his case by a board of officers, he requested a personal appearance before the board of officers, and he elected to submit a statement in his own behalf.

6.  On 26 July 1978, his commander forwarded his recommendation to void the applicant's enlistment due to fraudulent entry.

7.  His battalion commander endorsed that recommendation, stating that the applicant was placed in civilian confinement by local law enforcement officials and charged with assault, breaking and entering, and grand larceny.  He added the applicant was convicted of robbery in September 1973, which he concealed at the time of enlistment.

8.  On 18 August 1978, the separation authority, a major general, approved the commander's recommendation to void the applicant's enlistment under the provisions of Army Regulation 635-200, paragraph 14-5a(1).  He also indicated that at the time, the applicant was in the hands of civil authorities.

9.  Accordingly, on 22 August 1978 the applicant was released from military service.  The DD Form 214 he was issued at the time shows he was not credited with any active service during his period 24 February through 22 August 1978.

10.  Army Regulation 635-200 (Enlisted Separations), Section II, Fraudulent Entry, paragraph14-5, authority, states that where court-martial charges are not pending or contemplated, commanders exercising general court-martial jurisdiction will void the fraudulent entry of an individual by issuing orders releasing the member from Army control for fraudulent entry in all cases involving alleged or verified connivance by recruiting officials, concealment of previous discharge under other than honorable conditions, or where the member is presently AWOL, in desertion, or absent in the custody of civil authorities. 

11.  This regulation further states when service is voided a DD Form 214 will be prepared and distributed on all individuals released from custody and control due to void service, to include voidance due to fraudulent enlistment.  In addition to other items normally completed in preparing the DD Form 214, the following entries will be made:

	a.  Item 9a (Type of Separation):  Release from military service

	b.  Item 9c (Authority and Reason):  Paragraph 14-5a(1), Army Regulation 635-200

	c.  Item 9e (Character of Service):  NA [not applicable]

	d.  Item 9f (Type of Certificate Issued):  None

	e.  Item 10 (Reenlistment Code):  Re 3

	f.  Item 18 (Record of Service):  Zero

	g.  Item 27 (Remarks):  Indicate that time served during period of voided service is not creditable, and to record successful completion of BCT, AIT and other in-service training

DISCUSSION AND CONCLUSIONS:

1.  By the applicant's own admission, he concealed his civilian conviction when he enlisted.

2.  While the applicant requested a board of officers consider his case, he was no longer entitled to that right when he was incarcerated by civilian law enforcement authorities.  The regulation in effect at the time mandated that a Soldier who was absent in the custody of civil authorities have their enlistment voided when they fraudulently enlist.

3.  Although the applicant in effect served in the Army from 24 February through 22 August 1978, based on his fraudulent entry, the time he served on active duty is not creditable.  Therefore, his record of service on his DD Form 214 is correct as prepared.

4.  In view of the foregoing, there is no basis to grant 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 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)                                         AR20110018402



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ABCMR Record of Proceedings (cont)                                         AR20110018402



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