IN THE CASE OF:	  

		BOARD DATE:	    17 October 2013

		DOCKET NUMBER:  AR20130002928 


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, the spouse of a deceased former service member (FSM), requests an upgrade of the FSM's under honorable conditions discharge.

2.  The applicant states the FSM had disputed/appealed his discharge for misconduct - fraudulent entry prior to his death.  He received his first payment for benefits on 14 March 2012 which was also the date of his death.

3.  The applicant provides:

* the FSM's DD Form 214 (Report of Separation from Active Duty)
* a certificate of death 
* a certificate of birth
* a copy of a United States Treasury check
* a letter

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he enlisted in the Regular Army on 25 November 1975.  On 2 December 1975, he was assigned for basic combat training (BCT) to the 2nd Battalion, 1st BCT Brigade, Fort Gordon, GA.

2.  On 9 January 1976, he was reported as absent without leave (AWOL) from his assigned unit.

3.  His records contain a DA Form 2496 (Disposition Form), dated 27 January 1976, wherein the Director of Security, Fort Gordon, GA, notified his immediate commander that a Federal Bureau of Investigation (FBI) report indicated the FSM may have been a fraudulent entry into the U.S. Army as he had not disclosed his civilian convictions.  

4.  On 15 February 1976, he was apprehended and returned to military control at Fort Sill, OK.  

5.  On 8 March 1976, the FSM's senior commander was notified by an assistant adjutant, Military Personnel Office, Fort Gordon, GA, that orders were published on 4 March 1976, at Fort Sill, OK, directing the FSM to report to the 1st BCT Brigade, Fort Gordon, GA, on 5 March 1976.  However, he was still in an AWOL status and it was requested that orders be published to release him from Army control.  A review of the FBI report showed the FSM qualified for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 for fraudulent entry.  

6.  The FSM's DD Form 214 shows he was discharged on 9 March 1976 while he was in an AWOL status under the provisions of Army Regulation 635-200, chapter 14 for misconduct - fraudulent entry, with an under honorable conditions characterization of service.  

7.  Item 18c (Net Active Service This Period) of this form contains the entry
"00  00  00" and item 27 (Remarks) shows he had 61 days of lost time from 9 January to 9 March 1976 due to being AWOL.

8.  The FSM died on 14 March 2012.

9.  The applicant provides a check payable to the FSM, dated 12 March 2012, in the amount of $10,125.00 for Department of Veterans Affairs (VA) compensation.

10.  There is no indication the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for processing fraudulent entry cases and provided for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the service.  It stated that fraudulent entry was the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known might have resulted in rejection.  Any incident which met the foregoing could be cause for discharge for fraudulent entry.  All service performed under a fraudulent enlistment was considered null and void.

12.  Army Regulation 635-200, 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.

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the FSM was discharged while in an AWOL status under the provisions of Army Regulation 635-200 for fraudulent entry for not disclosing his prior civilian convictions.  

2.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were appropriate considering all the available facts of the case.  

3.  A disability decision rendered by the VA does not establish error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority to determine a Soldier's active duty characterization of active duty service.

4.  Based on the FSM's overall record, his service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  In view of the foregoing, the applicant is not entitled to the requested relief.





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)                                         AR20130002928





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ABCMR Record of Proceedings (cont)                                         AR20130002928



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