IN THE CASE OF:	  

		BOARD DATE:  19 July 2012

		DOCKET NUMBER:  AR20120001674 


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 correction of his DD Form 214 (Report of Separation from Active Duty) to show:

* Item 9e (Character of Service) as "general, under honorable conditions" vice "NA (Not Applicable)"
* Item 18 (Record of Service) to show the dates of his service vice "0  0  0"

2.  The applicant states:

	a.  He enlisted in the Army on 22 July 1976 and he was discharged on 21 December 1977 under chapter 14 because he failed to disclose a prior criminal record.  He had no disciplinary problems other than time lost and he believes his military service time should be accurately listed on his DD Form 214.  At the time he enlisted he was 23 years old, had been in trouble a few times, and had a juvenile and adult criminal history.  He wanted to join the military to serve his country, better himself, and learn how to function in a normal society.  He needed guidance as he grew up without a father and has always been a social misfit.

	b.  He made mistakes while in the Army.  He was arrested for driving under the influence and the police ran a check on his criminal history.  His commander was notified and he was restricted to base and told he could not take leave.  He went absent without leave (AWOL) and turned himself in 30 days later.  He was saddened when he was then told he was being discharged under chapter 14 for fraudulent enlistment.  He had a substance abuse problem that started a few years after his discharge and a failed marriage.  He is now back in the community and doing the best he can in all aspects of his life.  He is very sorry for his actions.

3.  The applicant provides his DD Form 214 and two statements of support.

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 records show he enlisted in the Regular Army on 22 July 1976 and he held military occupational specialty 64C (Motor Transport Operator).  He was assigned to the 418th Transportation Company, Fort Hood, TX.

3.  On 7 March 1977, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL from 22 to 23 February 1977.

4.  On 30 August 1977, he was notified by his immediate commander of the commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 14, for concealment of conviction by civil court.  The commander stated at the time of the applicant's enlistment he had knowingly failed to indicate that he had a record of civilian arrests and convictions to include eight convictions in Alameda County, CA, and convictions in Berkeley, Hayward, and Woodland, CA.  The commander was recommending he be discharged.

5.  On 30 August 1977, he acknowledged notification of the proposed separation action and in a sworn statement stated it was true that he had a criminal record from as far back as when he was 12 years old.  He also stated he started drinking and using drugs at an early age but his real problem was his stealing and bad attitude.  He felt he had gained control over these problems and he wanted to stay in the Army so he could continue to serve his country.
6.  On 2 September 1977, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a general discharge under honorable conditions and an undesirable discharge under other than honorable conditions, and of the procedures and rights available to him.  He further acknowledged he understood if he were issued an undesirable discharge he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  

7.  On 7 September 1977, his intermediate commander recommended approval of the separation action.  He stated the applicant should be discharged due to the large number of previous convictions and especially because of the two convictions for resisting public officers in the discharge of their duties and assault with a deadly weapon.  He further stated the applicant was facing extradition by California authorities for an offense he committed there.

8.  On 2 December 1977, his senior commander recommended approval of the separation action under the provisions of Army Regulation 635-200, chapter 14, for fraudulent entry due to the vast number of the applicant's arrests and convictions.  He further stated the processing of the separation action had been delayed pending the determination of whether California authorities were trying to extradite the applicant and because he (the applicant) had been AWOL since 21 November 1977.  The commander recommended the applicant's enlistment be voided immediately and he be released from active duty. 

9.  On 2 December 1977, the separation authority voided the applicant's enlistment due to fraudulent entry and directed he be released from active duty immediately under the provision of Army Regulation 635-200, chapter 14.

10.  On 21 December 1977, he was released from military control while in an AWOL status.  The DD Form 214 he was issued shows he was separated under the provisions of Army Regulation 635-200, chapter 14, for misconduct - fraudulent entry.  The characterization of his service was NA.  He was credited with zero service.  

11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of or a change in the reason for his discharge within its 15-year statute of limitations.

12.  The applicant provides a statement of support, dated 2 April 2012, wherein a substance abuse counselor stated the applicant was a client in a substance abuse treatment facility in 2011 and 2012 and had successfully completed the program.  He also provides a statement of support, dated 28 March 2012, wherein a food bank coordinator stated the applicant had been a dependable volunteer at the food bank helping clients in need of emergency food assistance.

13.   Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14, established policy and prescribes procedures for separating members for fraudulent enlistment.  Fraudulent entry is the procurement of an enlistment through any deliberate material misrepresentation, omission, or concealment which, if known and considered by the Army at the time of enlisted, might have resulted in rejection.  This included all conditions that would have been disqualifying without a waiver.  Commanders would determine if the information was in fact disqualifying.  If the information was disqualifying a DD Form 214 would be prepared and distributed in accordance with Army Regulation 635-5 (Personnel Separations - Separation Documents) for all individuals released from custody and control due to voided service.  All service performed under a fraudulent enlistment was considered null and void.

14.  Army Regulation 635-5, in effect at the time, prescribed the preparation of separation documents.  Paragraph 2-7d provided that when members are released from custody and control of the Army because of a void or voided enlistment, "Not Applicable (NA)" would be entered in Item 9e of the DD Form 214 and zeros would be entered in the year, month, and day block of Item 18.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's enlistment was voided in accordance with Army Regulation 635-200, chapter 14, for fraudulent entry based on his concealment of a vast record of civilian arrests and convictions.  His release from military control was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  In addition, his DD Form 214 was properly prepared in accordance with applicable regulations.  As his enlistment was voided for fraud and he never acquired military status, his character of service is correctly shown as "NA" and his DD Form 214 correctly reflects no active service.  

3.  In view of the foregoing, 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)                                         AR20120001674





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ABCMR Record of Proceedings (cont)                                         AR20120001674



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