IN THE CASE OF:	  

		BOARD DATE:  25 March 2014

		DOCKET NUMBER:  AR20130012575 


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, his separation authority and narrative reason for separation be changed.

2.  The applicant states, in effect:

* prior to separation he was offered a chapter 5 by his commanding officer at Fort Hood, TX
* at this time he wants to recant his decision and receive a chapter 
      5 discharge
* on 12 October 1979, he submitted his application for enlistment in haste
* he did not understand the severity of the effect it would have on his life so he did what he was told and signed the papers that were placed in front of him
* he did not meet with his recruiter after his separation to correct the mistakes made

3.  The applicant provides no additional documentary 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 enlisted in the Regular Army on 12 October 1979 for a period of 3 years.  His application for enlistment shows he reported three incidents with law enforcement authorities.  He completed his training and was awarded military occupational specialty 11C (indirect fire infantryman).

3.  In May 1980, nonjudicial punishment was imposed against him for possessing marijuana.

4.  On 9 September 1980, a bar to reenlistment was imposed against the applicant.   His DA Form 4126-R (Bar to Reenlistment Certificate) states he had 19 civilian arrests during the period October 1970 to January 1979 of which none were listed on his application for enlistment.  However, he did have three separate arrests listed.   

5.  On 11 September 1981, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for fraudulent entry by concealment of record as a juvenile offender and concealment of conviction by civil court.  

6.  He consulted with counsel and requested consideration of his case by a board of officers.  He also elected not to make a statement on his own behalf.

7.  On 13 November 1981, the separation authority disapproved the applicant's request for a board of officers because he had no such entitlement.  He approved the applicant's release from active duty by voiding his enlistment contract due to fraudulent entry under the provisions of section II, chapter 14, Army Regulation 635-200.

8.  On 24 November 1981, he was released from custody and control of the Army under the provisions of section II, chapter 14, Army Regulation 635-200, due to misconduct (fraudulent entry).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* item 25 (Separation Authority) the entry "Section II Chapter 14 Army Regulation (Army Regulation) 635-200
* item 26 (Separation Code) the entry "YKG"

* item 28 (Narrative Reason for Separation) the entry "Misconduct-fraudulent entry"

9.  There is no evidence of record which shows a recommendation for separation under the provisions of Army Regulation 635-200, chapter 5, was initiated by his commanding officer.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  

11.  Chapter 5 of Army Regulation 635-200, in effect at the time, provided for separation for the convenience of the Government.  Section IV (Lack of Jurisdiction) stated if the circumstances giving rise to the claim of lack of jurisdiction are governed by other provisions of this regulation (e.g., minority, erroneous or fraudulent enlistment), the inquiry and subsequent action on the claim will be conducted in accordance with the procedures outlined in those specific provisions and those paragraphs will be cited as the authority for the action taken. 

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It stated that the SPD code of YKG was the appropriate code to assign to Soldiers separated under the provisions of Section II, chapter 14, Army Regulation 635-200, by reason of misconduct - fraudulent entry.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he was offered a chapter 5 discharge by his commanding officer, there is no evidence and he provides no evidence to support this contention.

2.  His chapter 14 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The reasons for separation were appropriate considering all the facts of the case.
3.  The separation authority and narrative reason for separation used in the applicant's case are correct and were applied in accordance with the applicable regulations.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130012575



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ABCMR Record of Proceedings (cont)                                         AR20130012575



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