BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120017032 


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 his general discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he did not fraudulently enlist.  He disclosed all of his preenlistment problems.  His recruiter even went to court to tell the judge the applicant was signing up for military service.  He had no reason to lie or hide these facts.  He was the honor graduate for his advanced individual training (AIT) class.  He tried to fight the issue but is sure he did not represent himself well.  He has now been married 18 years and has two children, one in the process of applying for a Reserve Officers’ Training Corps (ROTC) scholarship.  He owns his own business with outlets in five states.  He is active in The American Legion and donates his time to serving veterans and his community.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  In June 1986, the applicant initially enlisted in the delayed entry program (DEP).  On 16 June 1987, he was separated from the DEP because he had not completed his high school graduation requirements. 

3.  He again enlisted in the DEP on 22 August 1991 following the receipt of a moral waiver on 20 August 1991.  The offenses shown to have been considered were:

* 19 November 1985, for an underage curfew violation
* 29 June 1988, for fleeing or attempting to elude a police officer, improper passing on right shoulder, failure to carry a drivers license, drivers license classification violation
* 15 September 1988, possessing false identification and resisting or obstructing a police officer

4.  On 1 October 1991, the applicant enlisted in the Regular Army, completed training, and was awarded military occupational specialty 31K (Combat Signaler).

5.  The applicant's discharge packet contains the following: 

	a.  A U.S. Army Central Personnel Security Clearance Facility letter, dated
30 March 1992, notifying the U.S. Army Signal Center, Fort Gordon, GA of the intent to deny the applicant a security clearance.  The letter stated the applicant failed to divulge his arrest on a drug-related offense.  He was arrested for possession of cocaine, he pled guilty, and he was sentenced to 1 year of non-reporting court supervision.  His criminal conduct, possession of a dangerous drug, and omission of a material fact from the security documents indicated a lack of sound judgment, reliability, and trustworthiness which is considered incompatible with the standards established for the possession of a security clearance.

   b.  A Report of Mental Status Evaluation, dated 17 September 1992, showing he was psychiatrically cleared for administrative or judicial action.
   
   c.  A DA Form 4126R (Bar to Reenlistment Certificate) showing the imposition of a bar to reenlistment against the applicant due to a record of non-payment of just debts (four checks totaling $173.90) and six negative counseling statements for failure to go to his place of duty.  The bar was approved on 13 October 1992. The applicant did not appeal the bar.

   d.  A memorandum, dated 16 October 1992, notifying the applicant of the command’s intent to initiate separation action against him under provisions of chapter 7, Army Regulation 635-200 (Enlisted Separations), for fraudulent entry.  Specifically, it was noted the applicant had failed to provide proper information regarding his moral waiver for a civil court conviction.  He had not reported a 1990 conviction for cocaine possession.

	e.  An 18 October 1992 memorandum detailing the specific reasons and supporting documentation for the separation recommendation.

	f.  His 19 October 1992 acknowledgement of his command’s proposed recommendation for separation for fraudulent enlistment.  At this time he waived his rights to consult with counsel, make a written statement on his own behalf, obtain copies of documents utilized for his separation action, have a separation medical examination, and request a conditional waiver.  He acknowledged he understood he could expect to encounter substantial prejudice if he received a GD.  

	g.  The Commander, U.S. Army, 78th Field Artillery Training Center's recommendation for approval of the discharge action with the issuance of a GD, dated 19 October 1992.

	h.  The discharge authority’s 3 December 1992 approval of the applicant's discharge with the issuance of a GD.

6.  On 9 December 1992, the applicant was discharged with a GD.  He had completed 1 year, 2 months, and 9 days of creditable service with no lost time.

7.  Additionally, his discharge packet includes copies of his enlistment application, Department of Defense National Agency Questionnaire, a request for waiver of disqualification for enlistment with police records checks, and the grant of an enlistment waiver.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states that an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of a Soldier’s service has met the standards of acceptable conduct and performance of duty.  
	b.  Paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD. 

	c.  Paragraph 7-17 states 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.  Soldiers who concealed their 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the record does not contain any evidence that shows he was an AIT honor graduate or that his recruiter went with him to any court hearing.

2.  In addition to the pre-service cocaine conviction that was not disclosed at the time of his enlistment, the applicant also had several in-service disciplinary infractions, which included passing bad checks and failure to go to his appointed place of duty at the time prescribed while on active duty.

3.  Further, the applicant's post-service business accomplishments, while commendable, are not sufficiently meritorious to overcome the offenses that led to his discharge action.

4.  The above factors combine to show that his service was not so meritorious as to warrant an HD.

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)                                         AR20120017032



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ABCMR Record of Proceedings (cont)                                         AR20120017032



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