BOARD DATE:	  28 June 2012

		DOCKET NUMBER:  AR20110024804 


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 based on a review of his records.

2.  The applicant states he was told that his discharge would be automatically upgraded six months after the date of his discharge.

3.  The applicant provides copies his separation documents in support of his request.

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.  A DD Form 1966 (Record of Military Processing - Armed Forces of the United States), completed by the applicant prior to him executing the Oath of Enlistment, shows he indicated he had no involvement with police or judicial authorities, except for a traffic offense in November 1977 for which he was fined $23.00.

   a.  He certified the information given by him was true, complete, and correct and that he was being accepted for enlistment based on the information he provided.
   
   b.  He also acknowledged that if any of the information was knowingly false or incorrect, he could receive a less than honorable discharge which could affect his future employment opportunities.

   c.  The applicant signed the document on 17 March 1982.

3.  The applicant enlisted in the U.S. Army Reserve on 22 March 1982 for a period of 6 years.  On 13 April 1982, he enlisted in the Regular Army for a period of 3 years.

4.  On 14 June 1982, the applicant accepted nonjudicial punishment (NJP) for striking at a Soldier with his fist.  

5.  Upon completion of advanced individual training (AIT), the applicant was awarded military occupational specialty (MOS) 72E (Telecommunications Center Operator).

6.  The results of a security investigation revealed that the applicant pled guilty and was convicted of theft by shoplifting on 16 January 1981.  He was fined $150.00 and given probation for 12  months.

7.  The commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 7 (Fraudulent Entry), paragraph 7-17, based on the undisclosed civil conviction.
	
8.  On 8 November 1982, the applicant acknowledged with his signature that he had been notified of the basis for the contemplated separation action under the provisions of Army Regulation 635-200, chapter 7, for fraudulent entry.

	a.  He acknowledged that he had been afforded the opportunity to consult with counsel.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him.

	b.  He elected not to submit statements in his own behalf.  However, the separation packet does contain a statement by the applicant, dated 13 December 1982.  The applicant stated, "my recruiter said to just wait until I get to my AIT and tell them about my offense that I did not state.  He did not tell me not to state it then, but to wait until AIT briefing because of the importance, if I chose to stay in this MOS (72E).  He said, I might change MOS or not make it through basic training or just wanted out."

9.  The applicant's immediate and intermediate commanders recommended approval of the separation action.

10.  The separation authority approved the recommendation and directed the applicant be issued a General Discharge Certificate.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 5 January 1983 under the provisions of Army Regulation 635-200, paragraph 7-17b(3), based on fraudulent entry with his service characterized as under honorable conditions.  He completed 
8 months and 23 days of active service.

12.  A review of the applicant's military service records failed to reveal evidence that he was advised or informed that his discharge would be automatically upgraded to fully honorable six months after the date of his discharge.

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

14.  Department of Defense Instruction 1332.28 (Standards for Discharge Review) specifically states that no factors should be established that require automatic change or denial of a change to any discharge.

15.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel from the Army.  Chapter 7 provides the criteria and procedures for the separation of Soldiers because of fraudulent entry. 

	a.  Paragraph 7-17b shows that a Soldier who concealed a felony conviction by civil court normally will not be considered for retention.  A Soldier discharged under these provisions may be furnished a DD Form 256A (Honorable Discharge Certificate), DD Form 257A (General Discharge Certificate), or assigned a character of service of under other than honorable conditions.


	b.  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 contends his general, under honorable conditions discharge should be upgraded to fully honorable based on a review of his records and because he was told that his discharge would be automatically upgraded six months after the date of his discharge.

2.  The evidence of record shows the applicant concealed his conviction by civil court when he completed his application to enlist in the U.S. Army.  

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4,  There is no substantiating evidence to show that the applicant was told his discharge would be automatically upgraded.

5.  The Army does not, nor has it ever had, a policy to automatically upgrade discharges.  When an applicant submits a request to change a discharge, each case is decided on its own merits.  Change may be warranted if the Board determines that the characterization of service or the reason for discharge was in error and/or unjust.

6.  The applicant concealed his conviction by a civil court, he received NJP for striking at a Soldier, and he completed less than nine months of his 3-year enlistment obligation.  Thus, his service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.


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)                                         AR20110024804



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ABCMR Record of Proceedings (cont)                                         AR20110024804



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