IN THE CASE OF:	  

		BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20120022499 


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 correction of his DD Form 214 (Report of Separation from Active Duty) to show he was honorably discharged.

2.  The applicant states his DD Form 214 does not show a character of service. However, he received an honorable discharge on 11 November 1976 and this correction is necessary for him to obtain veterans' benefits.

3.  The applicant provides a copy of 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 13 July 1976.

3.  A State of Delaware, Bureau of Adult Correction, Dover, DE, letter, dated 
13 October 1976, shows a probation-parole counselor notified the applicant's commander that, based on information available, it appeared the applicant had entered the Army illegally.

4.  On 19 October 1976, the company commander notified the applicant that he was being considered for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), for concealment of a conviction by civil court (i.e., fraudulent enlistment).  The applicant was advised of his rights and he also consulted with legal counsel.

5.  On 26 October 1976, the applicant's company commander initiated separation action against the applicant.  He commented that the applicant had lived up to high standards during basic combat training and advanced individual training.

6.  The intermediate commanders acknowledged the applicant's duty performance.  The recommendation was issuance of an Honorable Discharge Certificate.  Based on the actions the applicant took to enlist in the Army retention was not recommended.  

7.  On 4 November 1976, the separation authority approved the applicant's release from the Army by reason of a void enlistment.

8.  The applicant's DD Form 214 shows he was released from military control on 11 November 1976 under the provisions of Army Regulation 635-200, chapter 14, based on misconduct - fraudulent entry.  It shows in item 9a (Character of Service) "NA" and item 9f (Type of Certificate Issued) "None."

9.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct.


	b.  Chapter 3 (Character of Service/Description of Service) provides that:

    	(1)  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; and

    	(2)  a member will not receive a discharge, characterization of service at separation, or an uncharacterized description of service if the enlistment is void.

11.  Army Regulation 635-5 (Separation Documents), in effect during the period of service under review, prescribes policies and procedures regarding separation documents.  It also establishes standardized policy for preparing and distributing the DD Form 214.  It states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and an entry is required in all items of the DD Form 214.  When the information is omitted pursuant to regulatory guidance or where no entry is appropriate, enter "NA."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show he was honorably discharged.

2.  The separation authority directed that the applicant be released from the 
Army by reason of a void enlistment.

3.  The governing regulation provides that a member will not receive a discharge certificate or characterization of service at separation if the enlistment is void.  Thus, the entries in items 9e and 9f of his DD Form 214 are correct.

4.  Therefore, there is no basis for granting the requested relief.

5.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.


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)                                         AR20120022499



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ABCMR Record of Proceedings (cont)                                         AR20120022499



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