IN THE CASE OF:	  

		BOARD DATE:  27 March 2014

		DOCKET NUMBER:  AR20130010409 


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 her discharge.

2.  The applicant states:

* when she enlisted, the recruiter told her to refrain from noting that she had a dependent child
* the recruiter advised her to wait until she got to her first duty station to disclose this information
* when she did disclose this information, her commander chaptered her out for a fraudulent enlistment
* the Department of Veterans Affairs (VA) has characterized her service as honorable and awarded her a 60 percent disability rating for post-traumatic stress disorder and military sexual trauma 

3.  The applicant provides the following documents multiple VA rating decisions.

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's records show she enlisted in the Regular Army for a period of 3 years on 3 February 1976.  She did not list any dependent children in item 28a (Relatives) of her DD Form 1966 (Application for Enlistment).

3.  She was subsequently reassigned to Fort Leonard Wood, MO, for completion of basic combat and advanced individual training.

4.  On 9 June 1976, her immediate commander notified her of his intent to initiate separation action against her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to fraudulent enlistment. 

5.  On 9 June 1976, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  She was advised of the basis for the contemplated separation action, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She waived consideration of her case by a board of officers and waived personal appearance before a board of officers.  She indicated she understood she could expect to encounter substantial prejudice in civilian life and as a result of the issuance of a discharge under conditions other than honorable, she could be ineligible for many or all benefits as a veteran under Federal and State laws.  She also elected not to submit a statement in her own behalf.

6.  On 10 June 1976, her immediate commander initiated separation action against her for a fraudulent enlistment.  The commander stated the applicant concealed a dependent when she enlisted.  

7.  On 16 and 21 June 1976, her intermediate and senior commanders recommended approval to void her enlistment contract.  The senior commander opined her performance was not so outstanding as to warrant her retention. 

8.  On 28 June 1976, the separation authority ordered the applicant's enlistment voided in accordance with chapter 14 of Army Regulation 635-200 and the applicant's release from military control by reason of fraudulent enlistment.  Accordingly, she was released from the custody and control of the Army on 6 July 1976. 

9.  Her DD Form 214 shows she was released from the custody and control of the Army on 6 July 1976 for misconduct-fraudulent entry, under the provisions of Army Regulation 635-200, chapter 14.  This form also shows she entered active duty on 3 February 1976 and she was released 6 July 1976.  Item 12c (Net Active Service This Period) of this form shows the entry "00-00-00," item 24 (Character of Service) shows the entry "NA" (not applicable), and item 26 (Separation Code) shows the entry "YKG."

10.  She provides multiple post-service VA rating decisions. 

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.  Section II pertained to incident of fraudulent entry.  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.  Army Regulation 635-200, 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.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  Characterization or description of service is determined by directives authorizing separation.  The version of the regulation in effect at the time stated that for a Soldier being released from the custody and control of the Army due to a fraudulent void enlistment, "NA" would be entered in item 24 of the DD Form 214.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation in effect at the time showed that SPD "YKG" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Fraudulent Entry" and the authority for discharge under this SPD was "chapter 14 of Army Regulation 635-200."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that upon her enlistment in the Regular Army the applicant concealed the fact that she had a dependent child.  Accordingly, her chain of command initiated action to void her enlistment contract.  She was ultimately released from the custody of the Army by reason of fraudulent entry.  

2.  Her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.  She was assigned the proper separation code and authority for separation.  The appropriate character of service associated with this type of discharge at the time was "NA" which is correctly shown on her DD Form 214.  

3.  Time spent in an enlistment which is determined to be fraudulent and is terminated for this reason is not creditable service and cannot be characterized.  In view of the foregoing evidence, she is not entitled to the requested relief.

4.  The VA has no authority to characterize a Soldier's 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 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)                                         AR20130010409





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130010409



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1