IN THE CASE OF:	  

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130010637 


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 an upgrade of his under honorable conditions (general) discharge.

2.  The applicant states he got into trouble with his older brothers at age 14.  When he joined the military, he completed basic training but then the military let him go.  He could have stayed and tried to make a clean record to get out.  He left the military.  He is sorry it happened. 

3.  The applicant provides no additional evidence.

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 he enlisted in the Regular Army on 25 April 1974.  He answered "No" in Part II (Statement of Law Violations and Previous Convictions) of his DA Form 3286 (Statement of Enlistment) to the question:

Have you ever been arrested, charged, cited or held by Federal, State, County, City, or other law enforcement authorities or by Juvenile Court or Juvenile Probation Officials for any violations of any Federal Law, State Law, County or Municipal Law, Regulation or Ordinance? 

3.  He completed basic combat training at Fort Dix, NJ, and was reassigned to Fort Lee, VA, for completion of advanced individual training. 

4.  On 27 August 1974, the applicant's chain of command received a report from the Federal Bureau of Investigation confirming the applicant had been convicted prior to his entry on active duty.  A subsequent review of the applicant's military records revealed he did not disclose his previous conviction.  

5.  On 13 September 1974, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) by reason of fraudulent enlistment.  

6.  On 26 September 1974, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the type of discharge he 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 him.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.  He indicated:

* he understood he could expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him
* he understood, as a result of the issuance of a discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under Federal and State laws
* he elected to submit a statement in his own behalf

7.  In his statement, the applicant stated he should receive an honorable discharge.  He contended that when he enlisted, he told his recruiter to conduct a police check on him and his recruiter did so but nothing negative came back.  He believed his recruiter and thought he was clean of all police records.  He believes his recruiter lied about the police record to hurry him into the service. 
8.  The applicant's immediate commander initiated separation action against the applicant.  He stated the applicant had been previously convicted on one occasion, as shown on the National Agency Check.  When he completed the DA Form 3286, he stated that he did not have prior arrests or convictions.  Additionally, he had extreme difficulty adjusting to the military.  He had a negative attitude and he was unable to learn basic supply functions.  

9.  His intermediate and senior commanders recommended approval of the discharge action.

10.  On 18 October 1974, subsequent to a legal review for sufficiency and consistent with the chain of command's recommendations, the separation authority approved the discharge action and ordered the applicant discharged in accordance with paragraph 14-5c of Army Regulation 635-200 by reason of fraudulent enlistment with the issuance of an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 23 October 1974.  

11.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 23 October 1974 for misconduct-fraudulent entry, under the provisions of Army Regulation 635-200, chapter 14.  This form also shows he completed 5 months and 29 days of active service.  

12.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

13.  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.  

14.  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.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to his enlistment the applicant was convicted of an unknown offense by civil authorities.  However, he failed to disclose this information upon his enlistment.  Accordingly, his chain of command initiated action to discharge him for fraudulent enlistment.  

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.  

3.  The applicant has not shown an error or an injustice in the processing of his discharge or in the character of service he received.  In view of the foregoing evidence, his 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)                                         AR20130010637





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ABCMR Record of Proceedings (cont)                                         AR20130010637



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