IN THE CASE OF:	  

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130006395 


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 reconsideration of his earlier request for correction of his records to show he was honorably discharged.

2.  The applicant states he received his induction notice in 1969.  However, after being interviewed twice, he was determined to be unfit for military service.  In 1976 while he was working in a bar, a local Army recruiter told him the Army no longer cared about what he did before and this was his chance to serve his country.  He agreed with the Army recruiter that he would not mention his former drug use.  He was convinced that he could enlist without any reprisal.  He loved serving his country and was advanced to private/pay grade E-2 while in training.  He was 26 years old and proud to be the oldest trainee in his unit.  He loved the discipline, direction, and quality of life.  He trained hard and knew his job.

3.  Since his release from military control in 1976, he has had a genuine service-connected hearing loss.  The hearing protection that was issued to him was insufficient.  The artillery noise was louder than anything he had ever heard.  He tried hard for the good of himself and his country, but he did not know the danger.  His enlistment omission, hearing loss, and his subsequent voided enlistment have hurt him for years.  He feels his error of omitting his prior drug use was influenced by his post-acute withdrawal syndrome (PAWS) and his post-traumatic stress disorder (PTSD).  Having both of these overwhelming impairments together convinced him that he was doing the right thing.

4.  He has been homeless and was eventually hospitalized due to PAWS and PTSD.  He used that time to complete his high school education.  He worked hard to stop his criminal behavior and stay clean since October 1990.  He graduated from the Alcohol Chemical Dependency Treatment Services Program at the University of Massachusetts as a Certified Alcohol and Drug counselor and passed the Licensed Alcohol and Drug Counselor examination in 2010.

5.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Massachusetts Trial Court Office of Commissioner of Probation notice of adult criminal record sealing, dated 24 June 2009
* Tri-County Internal Medicine Primary Care Physician's letter, dated 13 January 2013
* Crossroads Clubhouse Program Director/Advocate letter of support, dated 25 February 2013
* letter of support, dated 8 March 2013
* Arbour Counseling Services letter of support, dated 12 March 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110017271 on 27 March 2012.

2.  Except for his DD Form 214, the enclosures he provided are new evidence that warrant consideration by the Board.

3.  The original Record of Proceedings stated the applicant enlisted in the Regular Army on 21 June 1976.  During the enlistment process, he completed section IV (Other Background Data) of the DD Form 1966 (Application for Enlistment – Armed Forces of the United States).

	a.  He answered "No" to item 37c (Have you ever been involved in the use, purchase, possession, or sale of marijuana, lysergic acid diethylamide, or any harmful or habit-forming drugs and/or chemicals except as prescribed by a licensed physician?)

	b.  He responded "Yes" to the following questions in item 40 (Involvement with Police or Judicial Authorities):

		(1)  item 40a (Have you ever been arrested, charged, cited (including traffic violations), or held by any law-enforcement or juvenile authorities in the United States or in a foreign country regardless of whether the citation or charge was dropped or dismissed or you were found not guilty?) and

		(2)  item 40b (As a result of being arrested, charged, cited, or held by law-enforcement or juvenile authorities, have you ever been convicted, fined or forfeited bond, or adjudicated a youthful offender or juvenile delinquent (regardless of whether the record in your case has been "sealed," expunged, or otherwise stricken from the court record?).

	c.  In item 40g, he provided specific information pertaining to his responses to items 40a and 40b.  He listed a speeding offense and indicated he had been fined $15.00.  The instructions for item 40g state to "include all incidents with law-enforcement authorities that you discussed with your recruiter."

4.  He signed section V (Certification) of the DD Form 1966 indicating the information he provided was true, complete, and correct to the best of his knowledge.  He also acknowledged that if any of the information was knowingly false or incorrect he could be tried in a civilian or military court and could receive a less than honorable discharge which could affect his future employment opportunities.

5.  The applicant's Federal Bureau of Investigation record check revealed that he was charged with eight offenses.  The record does not clearly show the disposition of four of the charges.  The charges and disposition (where available) are as follows:

* 23 June 1971, illegal possession of heroin and a hypodermic needle and syringe
* 8 July 1971, being present where narcotic drugs were found (dismissed)
* 27 August 1971, illegal possession of heroin and illegal possession of heroin to sell
* 12 October 1972, received stolen property (superior court)
* 19 October 1971, breaking and entering with the intent to commit a felony
* 30 October 1972, forgery (20 days of observation)
* 25 July 1973, forgery
* 14 November 1975, trespassing (20 days – specific disposition not shown)

6.  In September 1976, the applicant's company commander informed him that he was being separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, due to fraudulent enlistment – concealment of a conviction by civil court.

7.  The applicant's DD Form 214 shows he was discharged accordingly on 21 October 1976 by reason of voided enlistment.  Item 9e (Character of Service) is listed as "DNA" indicating it does not apply.

8.  The original Record of Proceedings shows the applicant's contention that he had served honorably was noted.  However, his service could not be characterized as such because he was separated by reason of voided enlistment as required by the governing regulation.

9.  The applicant provides a letter from the Office of the Commissioner of Probation that indicates his adult criminal record was sealed as of 24 June 2009.

10.  The applicant provides a letter from the Tri-County Internal Medicine Primary Care Physician who states the applicant has been under his care for a number of years.  The physician stated the applicant has been responsible about his health care.  He does not abuse alcohol or drugs and the physician considers him to be of good character.

11.  The applicant provides a letter from the Crossroads Clubhouse Program Director/Advocate who states the applicant has been an honest and kind man who has worked in his recovery to help others as others have helped him.  He has celebrated 23 years of consistent sobriety from drugs and alcohol and makes a sincere effort to attend 12-step meetings whenever possible.

12.  The applicant provides a letter of support from an acquaintance, dated 8 March 2013, who states he has known the applicant for about 30 years.  During that time, he has known the applicant as a person with a past who also is a person of integrity and good will.  He is honest, diligent and punctual.  The applicant has put forth a worthwhile effort not to reoffend or get high.  He openly admits military service changed him and made him a better man.  He is no longer the offender he was as an addicted young man.

13.  The applicant provides a letter from a staff member of Arbour Counseling Services, dated 12 March 2013, who states the applicant has been under care for over 2 years.  He has attended weekly and bi-monthly individual psychotherapy and had been under psychiatric treatment for manic/depressive symptoms.  He reported that he has been suffering from bipolar disorder since he was a teenager.  The author feels the military overlooked his mental illness at the time of his enlistment and misinformed him about the proper way to complete his application to serve his country.  Because the government prematurely discharged him and voided his enlistment, he had increased humiliation and feelings of betrayal which have exasperated his manic/depressive symptoms over the years.  The author believes taking away the applicant's rights for veterans' benefits has been and remains extremely detrimental to his physical and emotional well being.

14.  Army Regulation 635-200 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.

15.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The regulation, in effect at the time, 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 voided enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his voided enlistment should be changed to show his characterization of service as honorable because he trained hard and knew his job.  He contends that he was convinced by a local recruiter not to mention his prior offenses and was convinced he would not suffer any reprisals.

2.  The evidence of record shows the applicant failed to report all of his prior offenses on his enlistment application as required.  The penalties for omitting such information were clear.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The governing regulations prohibited showing a characterization for a period of service that was voided.  Accordingly, there is no error or injustice in this case.

4.  The applicant's claims of good post-service conduct and accomplishments are noted.  However, those deeds do not mitigate the act(s) he took to conceal his prior criminal behavior at the time of his enlistment.  Furthermore, there is no substantiating his contention that a local Army recruiter encouraged or sanctioned his concealment of prior bad acts.

5.  In view of the foregoing, the applicant's 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110017271, dated 27 March 2012.



      _______ _   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)                                         AR20130006395



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ABCMR Record of Proceedings (cont)                                         AR20130006395



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