IN THE CASE OF:	  

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120008624 


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 an upgrade of his discharge to an honorable discharge.

2.  He states he was discharged because he followed the directions of Staff Sergeant (SSG) D.V., a recruiter.  He revealed all information asked of him, and his recruiter said juvenile records were sealed and not to discuss them.  He knew it was his responsibility to reveal all pertinent information, and he feels he did so when he was recruited.  When he was being screened for a top secret security clearance he chose to reveal all in an attempt to do what he saw to be in the best interest of the Army and himself.  All he ever wanted to do was serve, and he excelled at everything asked of him in basic combat training, military occupational specialty (MOS) training, and advanced individual training.  He wishes to correct mistakes made by a less than honorable recruiter, a young man, and a system that failed at the time.  He has chosen to pursue degrees in psychology and sociology at this late date in his life so he can be of some service to his country and, more importantly, to those who have served and those who still serve.  

3.  He provides no documentary evidence in support of 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.  On 7 November 1980, the applicant enlisted in the Delayed Entry/Enlistment Program (DEP).  On 9 June 1981, he was discharged from the DEP to enlist in the Regular Army for a period of 4 years and training in MOS 05K (Electronic Warfare/Signal Intelligence Non-Morse Interceptor)

3.  The DD Form 1966 (Record of Military Processing – Armed Forces of the United States) series of forms completed during the applicant's enlistment required him to report in item 36 (Involvement with Police or Judicial Authorities).  The form shows he initialed the blocks for "yes" in response to two items:

	a.  Item 36a – Have you ever been arrested, charged, cited (including traffic violations) or held by any law-enforcement or juvenile authorities in the United States or in a foreign country regardless of whether the citation or charge was dropped or dismissed or you were found not guilty? 

	b.  Item 36b – As a result of being arrested, charged, cited, or held by law-enforcement or juvenile authorities, have you ever been convicted, fined, or forfeited bond, or adjudicated a youthful offender or juvenile delinquent (regardless of whether the record in your case has been "sealed," expunged, or otherwise stricken from the court record)?

4.  Item 36f required him to explain the "yes" answers he provided in item 36a and 36b.  The instructions for item 36f state to "include all incidents with law-enforcement authorities even if the citation or charge was dropped or dismissed or you were found not guilty or you have been told by recruiting personnel or anyone else that the incident was not important enough to list."  He listed four instances of speeding for which he paid fines.  

5.  He provided his signature in item 39.  By doing so, he certified the information he provided was true, complete, and correct to the best of his knowledge and belief.  He acknowledged he understood that he was being accepted for enlistment based on the information provided by him.  He acknowledged that if any of the information was knowingly false or incorrect, he could be tried in a civilian or military court and he could receive a less than honorable discharge which could affect his future employment opportunities.

6.  SSG D.V. provided his signature in item 41 certifying, in part, he had witnessed the applicant's signature and verified the information in section IV (which includes item 36).  By providing his signature, SSG D.V. acknowledged his liability to trial by courts-martial under the Uniform Code of Military Justice should he effect or cause to be effected the enlistment of anyone known by him to be ineligible for enlistment.

7.  The applicant's record includes a memorandum, subject:  Non-Selection for [Sensitive Compartmented Information (SCI)] Duties re: [the Applicant], dated      7 July 1981.  The memorandum shows the Commander, U.S. Army Personnel Security Screening Program Detachment, Fort Jackson, SC, informed the applicant's commander the applicant had declined to participate in the Personnel Security Screening Program, and, based on his refusal to undergo required processing, no determination could be made regarding eligibility for access to SCI duties.  The author of the memorandum requested the following actions be taken:

* void his guaranteed enlistment option
* reclassify him into an MOS not requiring access to SCI, if applicable
* obtain an assignment not requiring access to SCI from the U.S. Army Military Personnel Center

8.  The author of the memorandum further stated the determination was made through the fault of the applicant.

9.  A DA Form 2496 (Disposition Form) contains a statement the applicant made on 12 November 1981.  He stated, in part:

	"At the time of my enlistment my recruiter told me not to mention any criminal charges.  I believed him and did as he said.  During my security interview I realized how serious the field was and felt I should tell about the arrests."

10.  The applicant requested that he be allowed to train in MOS 05K1O.  He further stated he did not withhold any information, but a letter in his file stated he refused a security check.  

11.  A DA Form 2823 (Sworn Statement) shows the applicant made a statement on 13 November 1981.  He stated, in part:

	"This statement concerns a possible unfulfilled contract due to some bad advice (lies) by my Army recruiter, [SSG D.V.].  When I was approached by him at my high school I had no plans about joining the Army but through a lot of smooth talking and some real nice promises I agreed to join.  I was 18 at the time.  Now when I agreed he questioned me about any criminal offenses that I might have committed.  I told him about being busted for possession of marijuana when I was 16.  He then told me not to mention that and to deny it.  He said they wouldn't or couldn't find out about it even if I would be threatened with fines or imprisonment if I left it out.  So like a fool I believed him and did as he said.  I went through all the paperwork and was set up in my MOS which was 05K1O.  With this job I got a $3,000 bonus when I graduated, and $6,000 bonus for education through a program called the 'super-veap' and I was told about a high reenlistment bonus all of which I lost because:  During basic my security interview was started."  

	"When I realized how serious the field was and what I was getting into I felt it was time I brought everything up.  So I went up my chain of command and talked to [a first sergeant] at Fort Jackson, SC.  I told him everything and wrote out what the charges were and when they occurred and any action taken.  He said he would take care of it for me.  Since then nothing has happened concerning this.  At the same time I told the man doing my security check all about this and he said my chances of getting a clearance without waivers were almost non-existent so I told him not to bother until I can sort all of this out.  Now I have a letter in my folder saying I refused a security check and I can't hold any job needing a clearance.  In other words I'm stuck.  Also about 5 or 6 months after I was picked up for marijuana I was in on a breaking and entering incident.  All this happened earlier and I was not picked up for it till about a year later, after I had finished all my paperwork to enter the Army.  My recruiter didn't know about this but since he had advised me to hide my record because it couldn't be gotten I figured they wouldn't find this either so I didn't bring it up.  In both cases I was fined and in the latter charge I spent 2 weekends in juvenile detention."

12.  He continued, describing his motivation to join the Army and his good record as a student.  He named three officers and five noncommissioned officers he believed would give him good references.  

13.  A memorandum, subject:  Possible Fraudulent Enlistment, dated 18 December 1981, shows the Acting Chief, Malpractice Investigations, Headquarters, U.S. Army Recruiting Command, reviewed documentation to determine if the applicant's recruiter acted improperly.  The Acting Chief found the applicant did not list charges of possession of marijuana and breaking and entering in item 35 of the DD Form 1966.  The Acting Chief stated it appeared the applicant had fraudulently enlisted, and he recommended action be taken in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-4.  

14.  Item 6 (MOS) of his DA Form 2-1 (Personnel Qualification Record) shows, on 31 March 1982, he was awarded primary MOS 91C (Patient Care Specialist) and secondary MOS 91B (Medical Specialist).

15.  On 12 April 1982, the District Court, 28th Judicial District, Commonwealth of Kentucky, provided the applicant's commander with court records pertaining to the applicant.  A note on the cover letter indicated the Clerk was unable to find records of a marijuana conviction, but that it was "referred to in some of the social worker's reports."  Documentation provided by the court shows, on 27 January 1981, he pled guilty to burglary in the first degree and felony theft by unauthorized taking.  

16.  On 11 May 1982, he signed a statement requesting his enlistment contract be voided and that he be released from military control.  He stated he waived a board of officers.  

17.  On 24 May 1982, his commander informed him he had received evidence indicating he fraudulently enlisted in the U.S. Army by concealing one or more enlistment disqualifications.  His commander further informed him he intended to recommend voidance of his enlistment contract with his immediate release from military control.  The applicant signed the notice acknowledging:

* he had been advised of his rights
* his military status was invalid because it was based on an enlistment or order to active duty which was improper
* he understood current regulations provided that the defect could be waived and he could be retained on active duty provided his commander determined retention was warranted

18.  On 7 July 1982, the separation authority approved the recommendation in accordance with Army Regulation 635-200, paragraph 14-5a(3), and directed the issuance of orders releasing him from control of the U.S. Army.  

19.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from military control on 13 July 1982 by reason of "misconduct–fraudulent entry."  Item 24 (Character of Service) shows the entry "NA."  


20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 of the version in effect at the time provided the authority for release from military control due to fraudulent entry.  

		(1)  Paragraph 14-5a stated, in part, when court-martial charges were not pending or contemplated, commanders exercising general court-martial jurisdiction could void the fraudulent entry by issuing orders releasing the member from Army control.  

		(2)  Paragraph 14-5b provided guidelines for voidance.  It stated commanders exercising general court-martial authority were authorized to void fraudulent enlistments/reenlistments when the service of the member was of too short duration to properly apply establishment standards for award of an honorable, general, or an under other than honorable discharge, unless other conditions existed which clearly justified award of such a discharge.  The purpose was to preserve the value of honorable service and to preclude unmerited award of honorable discharges to individuals who, in many cases, would not be in the Army had their disqualifications been known at enlistment/reenlistment.  By the same token, Soldiers were to be discharged and their enlistments not voided when commanders believed their performance and conduct clearly merited a characterized discharge.  

	b.  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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.






DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his discharge to honorable.  

2.  During his enlistment processing, he was required to report all instances in which he had been convicted, fined, or adjudicated a youthful offender or juvenile delinquent regardless of whether the record had been sealed, expunged, or otherwise stricken from the court record.  At the time, he acknowledged the consequences of not providing this information included trial by civilian or military court and the possibility of receiving a less than honorable discharge.  

3.  The record shows he later admitted he had not reported an arrest for possession of marijuana and a conviction for burglary in the first degree and felony theft by unauthorized taking.  At the time, he stated he withheld the information based on advice from his recruiter, and in his application to this Board he reiterates his position that he acted on the direction of his recruiter.  While this may have been the case, there is no documentary evidence to support his assertion.  

4.  The record shows he was properly processed for release from military control under the provisions of Army Regulation 635-200, chapter 14, due to fraudulent enlistment.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.   

5.  Although a characterized discharge was authorized, the separation authority determined the applicant's service did not merit characterization.  There is no evidence showing injustice or inequity in this determination.  Therefore, he is not entitled to a characterized discharge, including an honorable 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 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)                                         AR20120008624



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ABCMR Record of Proceedings (cont)                                         AR20120008624



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