BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110022919 


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 general discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states at the time of discharge he was unaware of the mark this type of discharge would leave on his record.  When he was discharged he was not in any trouble.  

3.  The applicant provides no documentary evidence in support of the 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 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 evidence shows the applicant enlisted in the Regular Army on 13 August 1970.  He held and served in military occupational specialty (MOS) 57H (Cargo Handler) and private/E-2 is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.  

3.  The applicant’s disciplinary history in the Army includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 January 1971, for being absent without leave (AWOL) from 4 through 13 January 1971.  His punishment included a reduction to private/E-1.  

4.  The applicant was notified that action was being initiated to separate him under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) by reason of fraudulent entry.  On 16 August 1971, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, its effects, and the rights available to him.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which he waived consideration of his case by a board of officers, personal appearance before a board of officers, and elected not to submit statements in his own behalf.  The applicant also acknowledged his understanding that as a result of the issue of an under honorable conditions discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  

5.  On 16 August 1971, the unit commander recommended that the applicant be separated under the provisions of Army Regulation 635-206 (Personnel Separations) based on fraudulent enlistment.  The unit commander submitted a statement containing the reasons he took this action.  In it, he stated the applicant enlisted in the Army to escape a civilian trial and conviction.  The applicant had another individual take his tests upon entrance into the Army, and upon retesting the applicant was unable to pass the tests.  The unit commander recommended the applicant be issued a GD.  

6.  On 13 September 1971, the separation authority approved the applicant’s separation action and directed the applicant be issued a GD.  On 17 September 1971, the applicant was discharged accordingly.

7.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant on 17 September 1971 shows he completed 
1 year and 25 days of creditable active military service and he accrued 10 days of lost time due to being AWOL.  

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within that board’s 15-year statute of limitations.  

9.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section I prescribed the standards and procedures for processing cases of fraudulent enlistment.  A UD was normally considered appropriate for members separating under this provision of the regulation.  The separation authority could issue an HD or a GD if warranted based on the member's record of service.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the current Army policy for enlisted separations.  Paragraph 3-7a provides that an HD 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 that his GD be upgraded to an HD because he did not understand the impact of a GD at the time of his discharge has been carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms the applicant's separation processing based on his fraudulent entry was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The record further shows the applicant was fully counseled on the impact of a GD by legal counsel during the separation process and completed an election of rights in which he acknowledged he understood he could encounter substantial prejudice in civilian life as a result of receiving a GD.  As a result, his assertion that he did not understand the impact of a GD at the time of his discharge processing is not corroborated by the evidence of record. 



4.  The regulatory guidance in effect at the time indicated an under other than honorable conditions discharge was normally considered appropriate for members separated for fraudulent enlistment.  The applicant received a GD based on his generally acceptable conduct even though he had disciplinary problems as evidenced by his AWOL offense and the Article 15 he accepted as a result.  His disciplinary history clearly diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, there is an insufficient 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)                                         AR20110022919



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ABCMR Record of Proceedings (cont)                                         AR20110022919



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