IN THE CASE OF:
BOARD DATE: 4 January 2013
DOCKET NUMBER: AR20120010753
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, correction of his DD Form 214 (Report of Separation from Active Duty) to show he served in the Army for a least 2 years and that the character of his service was under honorable conditions (general).
2. The applicant states, in effect, the amount of time he served in the Army is not shown on his DD Form 214. He states he should have received a general discharge.
3. The applicant provides no additional evidence.
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. The applicant enlisted in the Regular Army on 3 September 1976. He completed training as a light weapons infantryman.
3. The applicant accepted nonjudicial punishment for the following offenses:
* Failure to obey a lawful order
* Gambling
* Leaving his weapon unsecured
4. On 27 May 1977, the Office of the Adjutant General was notified that the applicant's Personnel Security Investigation (PSI) disclosed an arrest, conviction, or unfavorable prior military service record which may not have been revealed for enlistment or considered for waiver requirement.
5. On 15 August 1977, the applicant was notified that he was being recommended for elimination from military service under the provisions of Army Regulation 635-200, chapter 14, for fraudulent entry. His commander cited his failure to report his juvenile adjudications for felonious offenses as the basis for his recommendation. The applicant acknowledged receipt of the notification. He elected not to submit a statement in his own behalf. However, he did state that his recruiter assisted him in concealing certain facts which, if known, would have resulted in rejection of his enlistment.
6. The appropriate authority approved the recommendation for discharge stating Department of the Army message date time group 302228Z March 1976 requires voidance of an enlistment when evidence establishes possible recruiter connivance or the service member refuses to make a statement concerning fraudulent entry. The applicant declined to make a statement. Accordingly, his fraudulent entry was voided. The applicant's release from control of the Army was directed under the provisions of Army Regulation 635-200, paragraph 14-4d, and his service was voided.
7. The applicants enlistment was voided on 14 September 1977. His DD Form 214 reflects no active or inactive service time because of his voided service. Item 9e (Character of Service) on his DD Form 214 reflects "N/A."
8. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14, in effect at the time, provided 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. The regulation stated that a member who concealed his conviction by civil court of a felonious offense normally would not be considered for retention. For members separated under this chapter, the fraudulent entry was to be voided by issuing orders releasing the member from Army control for fraudulent entry in all cases involving alleged or verified connivance by recruiting officials.
9. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the DD Form 214 was a summary of a Soldier's most recent period of continuous active duty. It provided a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. Paragraph 2-7 required the preparer to enter "NA," indicating not applicable, in item 9e when members were released from custody and control of the Army because of a void or voided enlistment.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted.
2. The available record shows he was discharged from the Army due to fraudulent entry.
3. When the applicant was notified of the outcome of his PSI, he stated that his recruiter assisted him in concealing certain facts which, if known, would have resulted in rejection of his enlistment. He also elected not to submit a statement in his own behalf. According to the applicable regulation, members separated under this chapter 14, the fraudulent entry was to be voided by issuing orders releasing the member from Army control for fraudulent entry in all cases involving alleged or verified connivance by recruiting officials.
4. The applicant's DD Form 214 properly reflects that he had no service and his character of service as "N/A." In view of the foregoing, his 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) AR20120010753
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ABCMR Record of Proceedings (cont) AR20120010753
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