IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20110023584 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect:

* in item 1 (Name) the suffix of "SR" 
* a more favorable narrative reason for separation 

2.  The applicant states, in effect, he should not have been discharged due to the fact that his security clearance check/determination was in error.  He also contends that it was ignorance on his part, as well as stubbornness, and anger against the Army because he was not granted temporary leave.  If he had been granted leave he would have stayed in the Army and possibly still be serving.  

3.  The applicant provides a copy of his DD Form 214; a self-authored statement, dated 7 November 2011; and a document showing the disposition of offenses which does not contain a name or any other information which would identify it as belonging to the applicant.

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 Delayed Entry Program (DEP) on 31 December 1985 and into the Regular Army on 25 February 1986 for a period of 3 years under the name currently shown on his DD Form 214.  The applicant's name is listed throughout his record as it is listed on his DD Form 214.

3.  Block 35 (Law Violations) of his DD Form 1966/3 (Record of Military Processing - Armed Forces of the United States) shows that in February 1984 he had the following violations/offenses in Gardner, MA (Worcester County Court) for which the penalty imposed was 30 days in jail:

* Driving While Under the Influence
* Unauthorized use of motor vehicle
* Driving without a license

4.  His service record contains a security clearance determination message, dated 14 May 1986, from the Commander, Central Clearance Facility, Fort Meade, MD, which stated his security clearance was being held in abeyance pending receipt of all pertinent information regarding two outstanding warrants for his arrest.  Records from the District Court, Winchendon, MA indicated warrants existed for failure to appear for a hearing on:

* 15 November 1984, for failure to provide child support
* 17 July 1985, for operating a motor vehicle after revocation of license (arrested in Athol, MA, on 22 June 1985)

5.  On 30 May 1986, his unit commander notified him of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 7, by reason of fraudulent entry, for failing to list two bench warrants on his enlistment forms.  He was advised of his rights.

6.  He acknowledged receipt of the proposed separation action, consulted with legal counsel, and elected to submit a statement in his own behalf.

7.  In his written explanation the applicant requested retention in the Army.  He stated that he did not deliberately conceal information and was unaware of the two outstanding warrants against him.  He contended he was never notified about the hearings because he moved around from place to place and had a problem with his mail.  Further, his recruiter conducted a record's check and only found the offenses the applicant had listed.

8.  The separation authority approved the recommendation for separation and directed the applicant be discharged from the Army under the provisions of paragraph 7, Army Regulation 635-200, for fraudulent entry, with service characterized as entry level status.

9.  On 26 June 1986, he was discharged accordingly.  He had completed 4 months and 2 days of active military service.

10.  He submitted a copy of what he contends is his criminal record although this document does not contain his name, social security number, or other personally identifiable information.  It lists the offense of "Leaving Scene:  Property Damage" with an arraignment date of 27 August 1985 which was dismissed on 28 October 1986.  "In Texas then Army" is handwritten on this document.  

11.  The statement that he provided with his application, dated 7 November 2011, explains that after he was discharged from the Army he hitchhiked back to Massachusetts to attend to the matter at hand.  He was able to show the court a check stub from the car wash job that his recruiter arranged and the case was dismissed.  He further contended that if the security check had been thorough it would have shown that he was in the DEP; therefore, he could not possibly have a ticket issued in his name in Winchendon, MA and be in Ablilene, TX at the same time.  Finally, he stated that since the age of sixteen and since his son was born he has used the suffix "SR" in his name.

12.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 7 provides 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.  This includes all disqualifying information requiring a waiver.  A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions.  If in an entry-level status the characterization of service will be uncharacterized.
	b.  Separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, before the date of the initiation of separation action, completed no more than 180 days of continuous active duty, and demonstrated that they could not or would not adapt socially or emotionally to military life.

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 the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the narrative reason for separation be changed to a more favorable reason and that the suffix "SR" be added to his name on his
DD Form 214.

2.  The evidence of record shows a security investigation discovered that prior to entry into the Army the applicant had two outstanding warrants which he failed to disclose on his enlistment documents.  Based on this information, he was subsequently discharged from military service under the provisions of paragraph 7, Army Regulation 635-200, for fraudulent entry.

3.  In his statement, he contends he never intentionally withheld information and that he was unaware of the outstanding warrants.  Further, he was in Texas in the DEP when the offense occurred.  He provided a criminal record showing the offense of leaving the scene and property damage.  He stated that upon discharge he provided documentation to the court showing he was working in Texas at the time of this offense and the case was dismissed.  However, a review of the criminal record provided by the applicant does not address either of the offenses that served as the basis for his fraudulent enlistment (failure to pay child support and driving on a revoked license).  Further, the criminal record shows the date of arraignment for the offense he contends was dismissed as 
27 August 1985, which was prior to his entry into the DEP, 31 December 1985, making his argument of being in Texas in the Army (DEP) invalid.

4.  The evidence of record confirms he served in and was separated in the name that is listed on his DD Form 214 and all other documents filed in his military personnel file show the same name without a suffix.

5.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to now record a suffix to his name in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.

6.  The applicant is advised that a copy of this decisional document will be filed in his Official Military Personnel File.  This should serve to clarify any questions or confusion in regard to a lack of a suffix recorded in his military record and to satisfy his desire to have a suffix documented in his military record.

7.  In view of the above, his request should be denied.

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)                                         AR20110023584



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ABCMR Record of Proceedings (cont)                                         AR20110023584



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