BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120010641 


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 change of his release from custody and control of the Army to an honorable or a general discharge.

2.  The applicant states he has supporting documentation to show his recruiter enlisted him with full knowledge of his criminal background and mental state.  He goes on to state he is in need of medical benefits.

3.  The applicant provides:

* his birth certificate
* a discharge medication reconciliation and Physician order
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* five pages from his military medical records
* a DA Form 2496 (Disposition Form) titled "Self-Admitted Fraudulent Enlistment
* a DA Form 2823 (Sworn Statement) by the applicant, dated 17 December 1981

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 4 November 1981 for a period of 3 years and training as a Lance Missile Crewman and assignment to Fort Sill, OK.  At the time of his enlistment he indicated he had been arrested and charged with burglary and that there was no conviction for the charge.

3.  He was transferred to Fort Sill to undergo his training and on 2 December 1981 the applicant's commander submitted a DA Form 2496 through the chain of command requesting an investigation be conducted to determine if the applicant was a fraudulent enlistee and that separation proceedings be initiated based on his self-admitted fraudulent enlistment.

4.  On 9 December 1981, information was received from Dallas, TX law enforcement officials indicating the applicant was convicted in October 1981 and placed on 2-year probation for burglary.

5.  On 17 December 1981, the applicant signed a sworn statement indicating he had telephonically informed his recruiter of his conviction and he was informed not to worry about it.

6.  On 21 December 1981, his commander notified him he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 for fraudulent enlistment.  After consulting with defense counsel the applicant elected not to submit a statement in his own behalf.

7.  On 15 January 1982, he was released from the custody and control of the Army under the provisions of Army Regulation 635-200, chapter 14 for misconduct – fraudulent entry.  He completed 2 months and 11 days of non-creditable service.  His character of service shows the entry "NA" (not applicable).

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.


	a.  Chapter 14 established the policy and prescribes procedures for separating members for fraudulent entry.  It states it was mandatory that action be taken to separate a member and void the service for fraudulent enlistment when the case involved connivance by recruiting officials.  It also states the      DD Form 214 issued for such cases will indicate in:

* item 18c (Net Active Service this Period), the entry "00  00  00"
* item 24 (Character of Service), the entry "NA"

	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 applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.  The applicant's release from service and the reasons therefore were appropriate considering all of the facts of the case.

2.  There is no evidence of record and the applicant did not submit any evidence that shows his release from service was unjust and that his service should have been characterized.

3.  The applicant's contention that his service should be characterized as an honorable or a general discharge has been noted.  However, the applicable regulation in effect at time precluded characterization of service when the case involved fraudulent enlistment with the connivance of recruiting officials.

4.  Additionally, the ABCMR does not grant requests for change of discharges solely for the purpose of making the applicant eligible for veterans or medical 


benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20120010641



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ABCMR Record of Proceedings (cont)                                         AR20120010641



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