IN THE CASE OF:
BOARD DATE: 16 August 2012
DOCKET NUMBER: AR20120003929
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 DD Form 214 (Report of Separation from Active Duty) be corrected to show his service in block 18 (Record of Service).
2. The applicant states his DD Form 214 does not reflect his service in block 18 and he believes a clerical error occurred at the time of his discharge.
3. The applicant provides a copy of his discharge orders and certificate, DD Form 214, and a copy of his enlistment contract.
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 applicants 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 applicants 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 Regular Army in Boston, Massachusetts on 20 August 1974, for a period of 3 years, training as a combat engineer and assignment to Fort Lewis, Washington. He was transferred to Fort Leonard Wood, Missouri to undergo his one-station unit training.
3. On 9 January 1975, while attending his advanced individual training, his commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-11, due to fraudulent enlistment. He cited as the basis for his recommendation that the applicant was indicted for assaulting a uniformed police officer and assault with a dangerous weapon on 10 May 1974 and the matter was still pending in Providence County (Rhode Island) Superior Court as of 16 December 1974.
4. After consulting with counsel the applicant elected not to submit a statement in his own behalf.
5. The appropriate authority approved the recommendation for discharge on 31 January 1975 and directed that he be furnished a General Discharge Certificate.
6. Accordingly, he was discharged under honorable conditions on 3 February 1975 under the provisions of Army Regulation 635-200, chapter 14, due to fraudulent enlistment. His DD Form 214 issued at the time of his discharge shows no service performed in block 18 as his service was voided.
7. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established the policy and prescribes procedures for separating members for fraudulent entry. It provided that when it was determined that action would be taken to separate a member for fraudulent enlistment, any service performed under a fraudulent enlistment would be voided and the DD Form 214 would be prepared to reflect all zeros in block 18.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his DD Form 214 should be corrected to reflect his service in block 18 of his DD Form 214 has been noted and found to lack merit.
2. The regulation in effect at the time provided that any service performed would be voided upon discharge due to fraudulent enlistment and the DD Form 214 would be prepared to reflect no service performed.
3. Accordingly, his DD Form 214 was properly prepared to reflect that his service was voided and the applicant has failed to show that an error or injustice exists in his case.
4. Accordingly, there appears to be no basis to grant the applicants request.
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) AR20120003929
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ABCMR Record of Proceedings (cont) AR20120003929
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