IN THE CASE OF:	  

		BOARD DATE:	  23 May 2012

		DOCKET NUMBER:  AR20110022192 


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 general discharge under honorable conditions to an honorable discharge
* amendment of his narrative reason for separation

2.  The applicant makes no statement.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 March 1982
* DD Form 215 (Correction to DD Form 214)
* Credit Report Dispute Form

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 U.S. Air Force on 28 April 1972.  He was honorably released from active duty on 23 June 1972 with a narrative reason for separation as inability to adapt to military service.  He completed 1 month and 26 days of active military service.

3.  On 1 May 1979, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 95B (Military Policeman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

4.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for the offenses indicated:

* on 1 September 1979, for missing a movement 
* on 17 April 1980, for being disrespectful to a superior noncommissioned officer
* on 26 November 1980, for dereliction of duty

5.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 7 December 1981, shows the applicant was advised that he was the subject of an investigation for possible fraudulent enlistment.

6.  A DA Form 2496 (Disposition Form), undated, shows the applicant's provost sergeant provided comments regarding the applicant's duty performance.  The comments, in part, are as follows:

* his duty performance has been marginal and he has been counseled both verbally and in writing
* he has failed to maintain minimum standards as compared to his peers
* almost daily, his conduct and duty performance has created problems within the section due to constant friction with his superiors and 
co-workers
* he has failed to respond to official counseling
* he should be transferred back to his parent unit at Fort Lee


7.  A letter from the applicant's commander, dated 17 December 1981, states:

* the applicant revealed that he had prior service in the U.S. Air Force
* he also revealed that he joined the Air Force by lying about his age – he was under age at the time of entry
* he received a discharge (inability to adapt to military service) from the Air Force
* to enlist in the Army, a waiver would be required and this condition would in itself disqualify him from being able to enlist
* the staff judge advocate stated that all the evidence contributed to and substantiated the belief that the applicant did, in fact, fraudulently enlist

8.  On 29 January 1982, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for fraudulent entry and the following:

* three Article 15's
* substandard performance
* multiple financial problems

9.  The applicant's reentry eligibility (RE) code from the U.S. Air Force was "2" and required a waiver for reenlistment.  A waiver was not obtained and this was considered in how the applicant's prior service was concealed.

10.  The applicant acknowledged receipt of the notification and signed a statement indicating he understood his service would be characterized as under honorable conditions (general discharge), he could expect to encounter substantial prejudice in civilian life, he was provided the opportunity to consult with an officer of the Judge Advocate General's Corps, there was no automatic upgrading or review by any government agency and he must apply to the Army Discharge Review Board or the ABCMR for a review of his discharge.

11.  On 16 March 1982, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate.  On 26 March 1982, the applicant was discharged accordingly.  His DD Form 214 for this period of service shows he was discharged for fraudulent entry due to concealment of prior service.  He completed 2 years, 10 months, and 22 days of creditable active service.


12.  The applicant provides a copy of his DD Form 214 discharging him from the U.S. Army, a DD Form 215 which corrected his date of birth on his DD Form 214, and a Credit Report Dispute Form showing he paid his debts.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states to enter the reason for separation shown in Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) based on the regulatory or statutory authority.

15.  The version of Army Regulation 635-5-1 in effect at the time stated "fraudulent entry" was the narrative reason for separation for Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-4b(1).  It stated that Soldiers separated for this reason would also receive an SPD code of "JKG."

16.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his general discharge and a change to his narrative reason for separation was carefully considered.

2.  The facts show his discharge from the U.S. Army was based on his concealment of a prior enlistment in the U.S. Air Force.

3.  The evidence of record confirms the applicant's commander notified him of the intent to separate him with a general discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record of service shows he received an Article 15 on three occasions, numerous counselings, and lacked the maturity for retention in the Army.  Had the applicant not been discharged for fraudulent entry, and based on this record of indiscipline alone, the applicant's character of service for separation is appropriate.

5.  Based on the foregoing, there is insufficient evidence to grant 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 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)                                         AR20110022192



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ABCMR Record of Proceedings (cont)                                         AR20110022192



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