IN THE CASE OF:	  

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120009509 


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 general discharge (GD) to an honorable discharge (HD).

2.  He states he was informed that 8 months after discharge his GD would be upgraded to an HD.

3.  He provides his GD Certificate.

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 Regular Army on 7 January 1982 for a period of 3 years and training in military occupational specialty 16P (Air Defense Artillery Short Range Missile Crewman).
3.  The DD Form 1966 (Record of Military Processing – Armed Forces of the United States) series of forms completed during his enlistment processing required him to report involvement with police or judicial authorities in items 36a through 36f of the DD Form 1966/5.

	a.  A note proceeding these items stated his answers would be verified with the Federal Bureau of Investigation (FBI) and other agencies and that if he concealed such records, he could, upon enlistment, be subject to disciplinary action and/or discharge/separation from the military service with an other than honorable discharge.

	b.  He initialed the block for "no" for each item.

4.  His record includes an FBI Identification Division Record, dated 24 February 1982.  This document shows that during the period 1965 to 1977 he was arrested or received on 15 occasions for charges including burglary, grand theft auto, assault and battery, and possession of a deadly weapon.

5.  On 23 April 1982, he completed MOS training, and he was awarded primary MOS 16P.

6.  On 16 November 1982, his commander notified him of his intent to initiate action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 7, for fraudulent enlistment that could result in his separation from the U.S. Army.

7.  On the same date, he acknowledged he had been advised by consulting counsel of the basis for the contemplated action to accomplish his separation under the provisions of Army Regulation 635-200, chapter 7, and its effects; the rights available to him; and the effect of any action taken by him in waiving his rights.  He acknowledged he could expect to encounter substantial prejudice in civilian life if a GD were to be issued to him.  He elected to submit a statement in his own behalf; however, no statement was available for review.

8.  His record includes an undated certificate signed by his commander stating that during a routine FBI investigation it was found the applicant had falsified his records to join the U.S. Army.  In item 36 of his DD Form 1966/5, he stated he had no previous record of being involved in criminal matters.  The FBI report shows he had been involved in criminal matters from 1965 to 1977 ranging from assault to robbery.  His job performance had been average; however, because of the civil offenses he committed prior to enlisting he was not eligible for a security clearance, and as a result, he had limited potential for future service.


9.  He provided statements from three noncommissioned officers dated 22 and 23 November 1982.  One stated he was an above-average Soldier.  Another noted his positive attitude, willingness to learn, and his performance during an exercise.  The third stated the applicant's performance had been average.

10.  In an undated memorandum, his intermediate commander recommended approval of the applicant's separation action because the applicant's potential for future service was limited due to his fraudulent enlistment and past criminal record, combined with his marginal performance as a Soldier.

11.  On 23 December 1982, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 7, by reason of fraudulent entry.  He directed the issuance of a GD.

12.  On 30 December 1982, he was discharged accordingly.  He completed
11 months and 24 days of creditable active service.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 7-17b(3), by reason of fraudulent entry with a GD.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Paragraph 7-17 provides that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under this chapter may be awarded an HD, a GD, or a discharge under other than honorable conditions.  If in an entry-level status the characterization of service will be uncharacterized.

	b.  Paragraph 3-7a provides that an HD 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 evidence of record does not support the applicant's request for an upgrade of his GD to an HD.

2.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.

3.  When he enlisted, he was required to report involvement with police or judicial authorities.  He was informed that his answers would be verified with the FBI and other agencies and that if he concealed such records, he could, upon enlistment, be subject to disciplinary action and/or discharge/separation, and he was warned that concealing information could result in discharge from the military service with an other than honorable discharge.

4.  As a result of concealing his criminal record, he was properly recommended for separation under the provisions of Army Regulation 635-200, chapter 7.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  The separation authority could have directed the issuance of an HD; however, he elected not to do so.  It is presumed the separation authority considered his overall record and did not find his service sufficiently meritorious to warrant an HD.  The available records support the separation authority's decision and there is no evidence of inequity or injustice in the discharge he received.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120009509



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ABCMR Record of Proceedings (cont)                                         AR20120009509



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