IN THE CASE OF:
BOARD DATE: 10 January 2013
DOCKET NUMBER: AR20120010500
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, that the reason for his discharge due to fraudulent entry be changed to family hardship.
2. The applicant states, in effect, that the reason for his discharge should have been due to family hardship. He contends military personnel are to blame for signing him up to serve in the military. There was never a problem until his children were born. He wants his record to show he received a hardship discharge due to his children's health.
3. The applicant provides no additional documentation.
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. His DD Form 1966/3 (Statement for Enlistment) shows the applicant indicated that his only dependent was his spouse.
3. On 22 July 1980, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty 64C (Motor Transport Operator).
4. On 4 August 1980, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful order (twice) from his superior noncommissioned officer (NCO).
5. On 3 November 1980, the applicant was convicted by a summary court-martial of willfully disobeying a lawful order from his superior NCO.
6. On 20 November 1980, the applicant's commander notified him that he was being recommended for separation under the provisions of Army Regulation
635-200, paragraph 14-4, due to fraudulent entry.
7. On 20 November 1980, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board. He elected not to make a statement in his own behalf.
8. On 20 November 1980, the applicants commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for fraudulent entry. The commander cited the applicant's NJP and summary court-martial conviction. He also stated the applicant had concealed three children who were considered to be his dependents.
9. The appropriate authority approved the recommendation for discharge and directed that the applicant's fraudulent enlistment be voided. He directed that the applicant be released from custody and control of the United States Army.
10. Accordingly, on 10 December 1980, the applicant was released from custody and control of the United States Army due to "misconduct fraudulent entry."
11. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 6 governs separation because of dependency or hardship. Separation under this chapter is for the convenience of the Government. A hardship exists when, in circumstances not involving death or disability of a member of a Soldiers immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.
b. Chapter 14 provided at the time that a fraudulent entry was 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 included all disqualifying information requiring a waiver.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, in effect, that he was discharged due to fraudulent entry; however, he should have been changed due to a family hardship because of his children's health.
2. The applicant's record contains one NJP and one summary court-martial for his misconduct. Furthermore, his enlistment record shows he only claimed his spouse as his dependent. His commander subsequently determined that he had concealed the fact that he had three dependent children.
3. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
4. Considering all of the facts of the case, the applicant's release from custody and control of the United States Army was proper and equitable.
5. In view of the above, the applicant's request should be denied.
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) AR20120010500
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ABCMR Record of Proceedings (cont) AR20120010500
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