IN THE CASE OF:
BOARD DATE: 22 April 2014
DOCKET NUMBER: AR20130013642
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 item 9e (Character of Service) of his
DD Form 214 (Report of Separation from Active Duty).
2. The applicant states:
* he wants his character of service changed from "NA" (not applicable) to a status
* it was the recruiter who did not list his prior record on the enrollment forms
* he was in the Army for approximately 8 months
* he understands that he was discharged because of his prior record
* he needs to get Department of Veterans benefits and they need some sort of status to make a determination
3. The applicant provides:
* three character reference letters
* DD Form 214
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. Records show, prior to the applicant's enlistment, he was arrested for receiving stolen property (stolen airline ticket).
3. He enlisted in the Regular Army on 13 December 1976 for a period of 3 years. He did not list his civil arrest on his enlistment contract. He completed basic training.
4. The available records do not show the applicant received any disciplinary action.
5. On 11 July 1977, the applicant's unit commander recommended his enlistment contract be voided due to recruiter connivance. He cited:
* the applicant was in court pending a civil charge of receiving stolen property
* no disposition was made of this charge
* the judge told him to go in the service or receive 2 years in prison
* he admitted to using marijuana
6. On 3 August 1977, the separation authority voided the applicant's enlistment under the provisions of Army Regulation 635-200 (Enlisted Personnel), paragraph 14-4d.
7. He was discharged on 9 August 1977 under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to fraudulent entry.
8. His DD Form 214 shows in:
* Item 9e the entry "NA"
* Item 9f (Type of Certificate Issued) the entry "NONE"
9. He provides three character reference letters from two friends and his stepdaughter who attest:
* he is a Christian who loves his family
* he is skillful, dependable, and appreciated
* he is good, kind, and respectable
* he is a good stepdad
10. Army Regulation 635-200, in effect at the time, set 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 entry. The regulation stated:
a. an individual discharged under the provisions of this chapter will be furnished a DD Form 256A (Honorable Discharge Certificate), DD Form 257A (General Discharge Certificate), or DD Form 258A (Undesirable Discharge Certificate).
b. the character of service would be based on in-service records and activities.
c. the offense of fraudulent enlistment occurs when the member accepts pay or allowance following enlistment procured by willful and deliberate false representation or concealment of his qualifications. Thus, upon receipt of pay and allowances, it becomes an in-service activity by the member and may be considered in characterizing his period of service, even though he is not tried for the offense.
DISCUSSION AND CONCLUSIONS:
1. Evidence shows the applicant was discharged for misconduct by reason of fraudulent entry in 1977 and his DD Form 214 shows his character of service as "NA."
2. The governing regulation states an individual discharged under the provisions of this chapter will be furnished a DD Form 256A (Honorable Discharge Certificate), DD Form 257A (General Discharge Certificate), or DD Form 258A (Undesirable Discharge Certificate).
3. Since there is no evidence of any disciplinary action, and any reasonable doubt should be resolved in the applicant's favor, it would be appropriate to correct items 9e and 9f of his DD Form 214 to show he was issued a DD Form 256A and his character of service was honorable.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. deleting the entry in item 9e of his DD Form 214 and replacing it with the entry "Honorable";
b. deleting the entry in item 9f of his DD Form 214 and replacing it with the entry "DD Form 256A; and
c. issuing him a DD Form 256A that shows he was honorably discharged on 9 August 1977.
_______ _ ___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) AR20130013642
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