BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120004682 


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, a change to the authority and reason for his discharge and that his service be characterized.   

2.  The applicant states his recruiter was responsible for his fraudulent entry and he was violated by his drill sergeant during training.  He claims he told them how he entered the military and got a hearing which resulted in his separation action under honorable conditions.  

3.  The applicant provides no documentary evidence in support of his request.  

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.  On 30 September 1977, the applicant enlisted in the Regular Army for
3 years.  The DD Form 1966 (Application for Enlistment-Armed Forces of the United States) completed by the applicant and signed by both him and his recruiter is on file.

3.  The DD Form 1966/4 contains “No” responses to the following questions in item 40 (Involvement with Police or Judicial Authorities):

   a.  “Have you ever been arrested, charged, cited, or held by Federal State, or other law enforcement or juvenile authorities regardless of whether the citation or charge was dropped or dismissed or you were found not guilty”; and
   
   b.  “Have you ever been awarded, or are you now under suspended sentence, parole, or probation or awaiting any action on charges against you.” 
   
4.  Item 40 of the DD Form 1966/4 contained the warning that the answers given would be verified with the Federal Bureau of Investigation (FBI) and other agencies to determine any previous records of arrest or convictions or juvenile court adjudication.  It also confirmed that if the applicant concealed such records  he/she could, upon enlistment, be subject to disciplinary action under the Uniform Code of Military Justice (UCMJ) and/or discharge from military service with an other than honorable discharge. 

5.  On 6 January 1978, the unit commander notified the applicant that discharge proceedings under the provisions of paragraph 14-3c, Army Regulation 635-200 (Personnel Separations) were being initiated for the applicant’s separation by reason of fraudulent entry into the U.S. Army.  The applicant completed a 
DA Form 3001 (Rights Warning Procedure/Waiver Certificate) in which he elected to not be questioned or say anything.  The record is void of any indication the applicant raised any issues related to his treatment by his drill sergeant prior to or during the separation process. 

6.  On 9 January 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action; its effects and the rights available to him.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which he elected to waive consideration and personal appearance before an administrative separation board and representation by counsel and not to submit statements in his own behalf.  



7.  On 10 January 1978, the applicant’s unit commander notified him that discharge proceedings under the provisions of chapter 14. Army Regulation 
635-200 by reason of fraudulent entry would be initiated.  He confirmed that an FBI report provided in response to a records check on the applicant indicated he had been convicted of auto theft and that the applicant had concealed this in his application for enlistment.  The commander further indicated he was recommending voiding the applicant’s enlistment based on the applicant’s refusal to make a statement when advised of his rights under Article 31 of the UCMJ.    

8.  On 19 January 1978, the separation authority approved the recommendation and directed that the applicant’s enlistment be voided and that orders be published releasing the applicant from Army control because of fraudulent entry.  On 26 January 1978, the applicant was released from military control accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows no characterization of service and completion of no active duty service.  

9.  On 16 November 1978, the applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) in which he made a statement to the effect that he told his Army recruiter that he wanted to join the Army, but that he was on probation.  He stated that the recruiter told him not to worry or mention it.  

10.  On 7 July 1979, the Army Discharge Review Board returned the applicant’s DD Form 293 without action based on the fact the applicant’s period of service was voided and the applicant was advised to apply to this Board based on the nature of his request.  

11.  Army Regulation 635-200 sets for the basic authority for the separation of enlisted personnel on active duty.  Chapter 14, in effect at the time, contained the policy and outlined the procedures used in separating individuals for fraudulent entry.  It provided, in pertinent part, that fraudulent entry was the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection.  Any incident which met the foregoing may be cause for discharge for fraudulent entry.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change the authority and reason for his discharge and for his service to be characterized because he was violated by his drill sergeant has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant refused to make a statement or be questioned subsequent to being advised of his right to remain silent under Article 31 of the UCMJ.  Further, there is no evidence of record supporting his assertion that he was violated by his drill sergeant.  The evidence of record shows the applicant’s separation was accomplished in accordance with applicable regulation in effect at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

3.  The office of the Judge Advocate General has opined in previous cases of this nature that because an applicant’s enlistment was void for fraud, the applicant never acquired military status and, therefore, his DD Form 214 correctly reflected no active service.  The applicant was properly separated for fraudulent enlistment under regulations in effect at the time and the separation was not contrary to existing law.  Since the Army chose not to waive the defect in an applicant’s enlistment, the enlistment was void.  The applicant was, therefore, not entitled as a matter of law to the relief requested.

4.  In view of the foregoing, there is no basis for granting the applicant’s 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)                                         AR20120004682



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ABCMR Record of Proceedings (cont)                                         AR20120004682


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