IN THE CASE OF:	  

		BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120020654 


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, an upgrade of his undesirable discharge.  He also requests, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he completed over 90 days of active military service.

2.  He states:

* his discharge was unjust because he served over 90 days
* he is just as much a veteran as others who served less active service
* his record doesn't indicate why he needed to be absent without leave (AWOL)
* he wants health care

3.  He provides his DD Form 214.

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 19 March 1968.  Items 8a and 8b of his DD Form 4 (Enlistment Contract – Armed Forces of the United States) indicate his marital status as single with one dependent.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on two separate occasions for failing to appear at reveille formation and for being AWOL from 3 to 8 June 1968.

4.  On 12 November 1968, his commanding officer referred him to the Mental Consultation Service.  A DA Form 1049 (Personnel Action), dated 12 November 1968, states:

	a.  At the time of the applicant's entry into the military service he claimed to be single with one dependent.  However, he was married and had three dependents.  He was AWOL from Fort Jackson, SC, on 5 August 1968 and surrendered to civil authorities on 28 October 1968.

	b.  The applicant was currently confined in the stockade.

	c.  The applicant was being considered for elimination from military service for fraudulent entry under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct).

5.  On 2 December 1968, he was convicted by a special court-martial of being AWOL from 5 August to 28 October 1968.  He was sentenced to hard labor without confinement for 3 months.

6.  On 10 February 1969, his commanding officer recommended his elimination from the service for fraudulent entry under the provisions of Army Regulation 635-206.  He was advised of his rights.

7.  The separation authority directed the applicant's discharge from the Army under the provisions of Army Regulation 635-206 by reason of fraudulent entry with the issuance of an Undesirable Discharge Certificate.

8.  On 26 February 1969, he was discharged under the provisions of Army Regulation 635-206 by reason of fraudulent entry.  His DD Form 214 does not indicate any creditable active service.  His DD Form 214 does show 198 days of lost time.

9.  His service records do not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 17 stated the unit commander would submit a recommendation for discharge by reason of fraudulent entry or retention through intermediate commanders to the commander exercising general court-martial authority upon discovery and after complete verification of any deliberate material misrepresentation, omission, or concealment of facts or conditions which, if known at the time, might have resulted in rejection.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The amount of net service during this period is computed by subtracting the date of entry from the date of separation.  Time lost under Title 10, U.S. Code, section 972, and non-creditable time after ETS, if any, is deducted.  Such time will be identified in the remarks.  If the Soldier was released from active duty because of voided enlistment, enter "00  00  00."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his undesirable discharge for eligibility for health benefits is acknowledged.  However, there are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veterans' benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.

2.  The evidence clearly shows the applicant fraudulently enlisted by concealing his marriage and dependents.  This misconduct plus his period of AWOL rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

3.  The evidence of record shows the applicant entered active service on 19 March 1968 and was discharged on 26 February 1969, a period of 11 months and 8 days.  However, he has a record of lost time of 198 days (6 months and 18 days).  Since was discharged for fraudulent entry under the provisions of Army Regulation 635-206, he is not entitled to any credit for active military service.  Therefore, his DD Form 214 properly reflects no active military service.

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 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)                                         AR20120020654



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ABCMR Record of Proceedings (cont)                                         AR20120020654



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