BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130006798 


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 (Certificate of Release or Discharge from Active Duty) to show he was honorably discharged on 12 December 1979.

2.  The applicant states:

* he was discharged because of a fraudulent enlistment
* he served in the U.S. Marine Corps from 20 February 1970 to September 1970 and obtained a Department of Veterans Affairs (VA) home loan
* he has been unable to get a copy of his DD Form 214 for his service in the U.S. Marine Corps
* he was discharged from the U.S. Marine Corps because his contract was violated
* he did not think his prior U.S. Marine Corps service counted
* he has been denied VA benefits because of his discharge

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 12 September 1975.  On 27 April 1977, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

3.  Item 24 (Military Service) of his DD Form 1966 (Application for Enlistment – Armed Forces of the United States), dated 16 July 1979, is marked "No" for the question, "Are you now or have you ever been in any Regular or Reserve Branch of the Armed Forces or in the Army National Guard or in the Air National Guard."

4.  On 17 July 1979, the applicant enlisted in the U.S. Army Reserve for a 6-year period.  Item 9 (Previous Military Service upon Enlistment/Reenlistment) of his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 17 July 1979, shows the entries "00  00  00" for total active military service and total inactive military service.

5.  In an undated memorandum, his immediate commander initiated a recommendation to void his enlistment due to fraudulent enlistment.  This memorandum shows the applicant:

* fraudulently enlisted in the U.S. Army Reserve by concealing prior service in the Army; a discharge under other than honorable conditions; 523 days lost under Title 10, U.S. Code, section 972; and a conviction by a civil court for statutory rape
* was questioned concerning possible connivance by recruiting officials and he stated he did inform his recruiter about his prior service

6.  On 16 November 1979, the applicant consulted with counsel and submitted statements in his own behalf for retention in the Army.

7.  On 4 December 1979, the separation authority ordered the applicant's enlistment voided in accordance with Army Regulation 635-200, paragraph 
14-5a, and the applicant's release from military control by reason of fraudulent enlistment.  Accordingly, he was released from the custody and control of the Army on 12 December 1979.

8.  His DD Form 214 for the period ending 12 December 1979 shows he was released from the custody and control of the Army on 12 December 1979 by reason of fraudulent entry under the provisions of Army Regulation 635-200, paragraph 14-5(1), and his character of service is marked "NA."

9.  A review of his records fails to reveal evidence of any service in the U.S. Marine Corps.

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

	a.  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.

	b.  Paragraph 3-7b provides that 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

	c.  Chapter 14, in effect at that time, 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 and not characterized.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant failed to reveal that he had prior Regular Army service, 523 days of lost time, a discharge under other than honorable conditions, and a conviction by a civil court for statutory rape at the time of his enlistment in 1979.  Accordingly, his chain of command initiated action to void his enlistment contract.  He was released from the custody of the Army by reason of fraudulent entry.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.  Under the authority for his discharge, service is not characterized.

3.  In the absence of evidence showing his separation was inequitable or unjust, there is no basis for characterizing his service as honorable or general under honorable conditions.

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)                                         AR20130006798



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ABCMR Record of Proceedings (cont)                                         AR20130006798



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