IN THE CASE OF:	  

		BOARD DATE:  17 July 2012

		DOCKET NUMBER:  AR20120001522 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his character of service as something other than "Entry-Level Status" and reason for separation something other than "Fraudulent Entry."

2.  The applicant states he does not know why his DD Form 214 shows he was discharged for fraudulent entry.  He requested all of his military records and they say nothing regarding the reason for his discharge.  He feels his character of service should read something other than entry level status.

3.  The applicant provides:

* DD Form 214
* DA Form 2-1 (Personnel Qualification Record)
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice))
* Two pages of DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States)
* Seven pages of medical records
* A letter from the National Personnel Records Center (NPRC), St. Louis, MO, dated 9 January 2012


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's record shows that in conjunction with his enlistment in the Regular Army (RA) he completed a DD Form 1966 (Application for Enlistment - Armed Forces of the United States) and he annotated the form as follows in:

	a.  Item 36 (Involvement with Police or Judicial Authorities) - Your answers to the following questions will be verified with the Federal Bureau of Investigation (FBI) and other agencies to determine any previous records of arrest or convictions or juvenile court adjudications.  If you conceal such records at this time you may, upon enlistment, be subject to disciplinary action and/or discharge/separation from the military service with other than an honorable discharge.  He acknowledged he read and understood this paragraph by placing his initials in the appropriate block.

	b.  Item 36f, he listed his offenses and dispositions of the offenses of obstruction of street and sidewalks, sale of marijuana, possession of marijuana and heroin, and two offenses of maintaining a common nuisance as having been dismissed.  He listed his offense of shoplifting as having been fined $50.00 and 180 days in juvenile confinement of which 120 days was suspended.  He further listed his offenses of disorderly conduct and contempt of court as having been fined $100.00 and $200.00, respectively.

	c.  Item 39 (Certifications) - I certify that the information given by me…is true, complete, and correct to the best of my knowledge and belief….If any of the information is found to be false or incorrect, I could be tried in a civilian or military court and could receive and under other than honorable discharge….He authenticated this form by placing his signature in the appropriate block on 5 March 1985.


3.  He enlisted in the Regular Army on 26 March 1985.  He was assigned to the 4th Battalion, 1st Signal School Brigade (SSB), Fort Gordon, GA, for advanced individual training (AIT) on 12 June 1985 and he was awarded military occupational specialty 31K (Combat Signaler) on 12 August 1985.

4.  On 14 August 1985, in response to information received by the FBI from a National Agency Check Request submitted on 13 March 1985, the applicant's command was notified that the applicant's access to classified information was suspended based on a review of his military records that revealed he did not list all of his civil arrests in item 36 of his DD Form 1966, as required.

5.  On 14 August 1985, the 4th Battalion, 1st SSB commander was notified that the information received required administrative action be initiated against the applicant in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 7, for fraudulent entry.

6.  On 26 August 1985, the applicant's immediate commander notified him that discharge action was being initiated against him under the provisions of Army Regulation 635-200, paragraph 7-17, for fraudulent entry.

7.  On 6 September 1985, he acknowledged receipt of the notification of his proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action and of the procedures and rights that were available to him.  In a statement he submitted in his own behalf, he stated he understood the nature of his discharge, that the Army had rules and policies, and that he was ready to handle the consequence surrounding his situation.  He stated he did not intend to defraud to Government; that he had nothing to gain by keeping the particular incident off his enlistment papers.  He was willing to take his discharge and ready to accept that this was the way the U.S. Army worked.  He further stated the sooner the discharge was over with the sooner he could get back to regroup and get on with living and learning.

8.  On 23 September 1985, his intermediate commander recommended approval of the discharge action and stated the applicant had listed numerous drug-related charges in his enlistment contract but he failed to list more serious charges that he had been convicted of, including carrying a concealed weapon and possession of marijuana in 1978.

9.  On 26 September 1985, his senior commander recommended approval of the separation action.
10.  On 9 October 1985, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 7-17, for fraudulent entry.  On 17 October 1985, he was discharged accordingly.

11.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 7-17, by reason of fraudulent entry with an entry-level status characterization of service.  He completed 6 months and 21 days of creditable active service.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 3 of the regulation described the different types of characterization of service.  It stated that a separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized.  Entry-level status begins on enlistment in the RA and ends after 180 days.

	b.  Chapter 7, paragraph 7-17b(3) stated that fraudulent entry is the procurement of an enlistment through any deliberate material misrepresentation, omission, or concealment of information which if known and considered by the Army at the time of enlistment might have resulted in rejection.  A member who concealed his or her conviction by civil court of a felonious offense normally would not be considered for retention.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant failed to disclose all of his civilian convictions when he enlisted in the RA.  As required by governing regulations, his commander initiated separation action against him for fraudulent entry and he was subsequently discharged by reason as such.

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separation action is initiated within the first 180 days of service the service is characterized as entry-level status.

3.  His DD Form 214 appropriately shows he was discharged by reason of fraudulent entry and that he received an entry-level status characterization of service.  Therefore, he is not entitled to 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)                                         AR20120001522



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ABCMR Record of Proceedings (cont)                                         AR20120001522



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