IN THE CASE OF:	  

		BOARD DATE:  21 June 2012

		DOCKET NUMBER:  AR20110025052 


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 narrative reason for separation be changed to "Convenience of the Government." 

2.  The applicant states:

* The narrative reason for separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he concealed an arrest record
* There was never any alleged arrest record produced for him to review
* This allegation was only by word of mouth by the Judge Advocate General office
* He was never arrested prior to his reentry 
* The only thing pending were outstanding summons for traffic tickets
* He was under a considerable amount of stress at the time (severe depression)   

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* Letter, dated 2 December 2011, from the Army Discharge Review Board (ADRB)



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.  Having prior service in the Regular Army (RA) and U.S. Coast Guard, the applicant enlisted in the Regular Army on 4 June 2002 for a period of 3 years.  Item 26 (Your Police Record – Other Offenses – In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in modules 21, 22, 23, 24, or 25?)) of his enlistment contract shows the entry "YES."  He reported he was arrested on 23 June 1997 for "CRIMINAL POSS OF STOLEN VTL 509.1 OP MV BY UNLICENSED" in New York.       

3.  A memorandum, dated 20 November 2002, from the Chief, Trainee/Student Processing Division, at Headquarters, U.S. Army Armor Center and Fort Knox, KY states:

* the applicant has concealed an arrest record
* according to the Department of Defense-Defense Investigative Service documents, dated 5 July 2002, he was arrested in 1997 for "Failure to surrender a revoked license or suspension"
* there is no disposition on this case because he failed to answer the charges and they are still pending
* the suspension is open
* his enlistment contract does not reflect this information
* an investigation is needed to determine disposition of all charges, if there are open fines/warrants now or at the time of enlistment, whether he is eligible for retention, or processing will continue under Concealment of Arrest or Fraudulent Entry

4.  Discharge proceedings under the provisions of Army Regulation 635-200, paragraph 5-14, for concealment of arrest record were initiated in November 2002.  His unit commander cited that he failed to reveal at the time of his enlistment that he had been arrested in 1997 for failure to surrender a revoked license or suspension and the charges were still pending.  He consulted with counsel and elected to make a statement in his own behalf.  In summary, he requested an extension to obtain documents from his attorney.  The separation authority approved the recommendation and directed that the applicant be furnished a general discharge.

5.  On 14 March 2003, he was discharged under honorable conditions (a general discharge) under the provisions of Army Regulation 635-200, paragraph 5-14, for concealment of arrest record.   

6.  On 12 August 2004, the ADRB upgraded his discharge to honorable.

7.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 5-14."  Item 
26 (Separation Code) shows the entry "JND."  Item 28 (Narrative Reason for Separation) shows the entry "CONCEALMENT OF ARREST RECORD."

8.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-14 provides that a Soldier may be separated for concealment of an arrest record for any juvenile or adult offense and such concealment does not amount to a fraudulent entry.  Separation is based on the false statements made in enlistment documents regarding the existence of an arrest record.  A Soldier being separated for the convenience of the government will be awarded a character of service of honorable, under honorable conditions or an uncharacterized description of service if in entry-level status.  

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), dated 1 December 2000, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code JND is "Miscellaneous/General Reasons" and the regulatory authority is Army Regulation 635-200, paragraph 5-14.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his narrative reason for separation be changed to "Convenience of the Government."

2.  Evidence shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-14.

3.  Item 26 of the applicant's DD Form 214 shows "JND" and item 28 shows his narrative reason for separation is concealment of arrest record.

4.  Since the governing regulation states the reason for discharge based on separation code JND is "Miscellaneous/General Reasons" and the regulatory authority is Army Regulation 635-200, paragraph 5-14, item 28 of his DD Form 214 should be corrected to show his narrative reason for separation is "Miscellaneous/General Reasons."  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X__ _  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the current entry in item 28 of his DD Form 214 and replacing it with the entry "Miscellaneous/General Reasons."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending item 28 of his    DD Form 214 to show the entry "Convenience of the Government." 




      __________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)                                         AR20110025052





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ABCMR Record of Proceedings (cont)                                         AR20110025052



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