IN THE CASE OF:	  

		BOARD DATE:	    28 February 2012

		DOCKET NUMBER:  AR20120003001


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 general discharge under honorable conditions for the period ending 12 December 1983 be upgraded to a fully honorable discharge.

2.  The applicant states that at the time he tried to reenlist in the Army for the third time, his recruiter decided it was best if he did not mention his previous discharges until he was returned to duty and that it would just be overlooked.  However, it was not overlooked and he was given another general discharge which saddened him because he really wanted to be a Soldier.

3.  The applicant provides a one-page letter explaining his application.

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 U.S. Army Reserve (USAR) on 18 June 1975 for a period of 6 years.  He was ordered to active duty for training (ADT) on 21 August 1975 and completed basic and advanced individual training (AIT) as a medical specialist before being honorably released from ADT to his USAR unit on 18 December 1975.

3.  On 15 November 1977, he was discharged from the USAR for the purpose of enlisting in the Regular Army.  He enlisted in the Regular Army for a period of 4 years and assignment to Europe on 16 November 1977.  He was discharged under honorable conditions at Fort Jackson, South Carolina on 22 October 1979 due to failure to maintain acceptable standards for retention under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-31, and the Expeditious Discharge Program.  He completed 1 year, 11 months, and 5 days of active service during this period and had 5 days of lost time due to absence without leave.

4.  On 12 July 1983, he again enlisted in the Regular Army for a period of 4 years and training as a wire systems installer.  At the time of his enlistment he indicated he had never been in any Regular or Reserve branch of the Armed Forces or in the Army National Guard or Air National Guard.

5.  The applicant completed basic training at Fort Dix, New Jersey, and was transferred to Fort Gordon, Georgia, to undergo AIT.

6.  On 24 October 1983, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 7-17, due to fraudulent enlistment.

7.  On 25 October 1983 after consulting with counsel, the applicant elected to submit a statement in his own behalf wherein he asserted that his recruiter advised him to not disclose his prior service and further advised him that if he soldiered well, the commander would recommend his retention.  He went on to state that he had soldiered well, had excelled in training, and desired to remain in the Army.

8.  On 7 December 1983, the appropriate authority (a major general) approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 12 December 1983 under the provisions of Army Regulation 635-200, paragraph 7-17, due to fraudulent enlistment.  He completed 5 months and 1 day of active service during this period.

10.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 7, in effect at the time, established the policy and prescribed procedures for separating members for fraudulent entry and defective enlistments and induction.  It provided that mandatory action was to be taken to separate a member and void the service for fraudulent enlistment when the case involved connivance by recruiting officials.  While an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate in cases involving concealment of prior separations which were not characterized as honorable.

12.  Army Regulation 635-200, 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's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  The applicant's administrative discharge from military service and the reasons were appropriate considering all of the facts of the case.

2.  The applicant's contentions have been noted; however, he failed to show through the evidence submitted with his application or the evidence of record that his discharge from military service was unjust and that his service should have been characterized as fully honorable.

3.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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 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)                                         AR20110017212



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ABCMR Record of Proceedings (cont)                                         AR20120003001



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