BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130016845 


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, correction of the character of his service from uncharacterized to honorable.

2.  The applicant states he did not have a civil conviction.

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 contain a DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 11 January 1989.  He completed a DD Form 1966 (Record of Military Processing) in connection with his enlistment.

3.  The applicant's DD Form 1966 shows he answered "NO" to the following questions:

	a.  Item 31 – Have you ever been arrested, apprehended, charged, cited or held by Federal, State, military or other law enforcement or juvenile authorities, regardless of whether the citation was dropped or dismissed or you were found not guilty?

	b.  Item 32 – As a result of being arrested, apprehended charged, cited or held by Federal, State, military or other law enforcement or juvenile authorities, have you ever been convicted, fined by or forfeited bond to a Federal, State or other judicial authority or adjudicated a youthful offender or juvenile delinquent; or have you been released from parole, probation, juvenile supervision or given a suspended sentence or relieved of charges pending on condition that you apply for or enlist in the United States Armed Forces?

	c.  Item 33 – Have you ever been detained, held in, or served time in any jail or prison, reform or industrial school, or a juvenile facility or institution under the jurisdiction of any city, state, Federal, or foreign country?

4.  Item 35 (Law violations.  Explain below "YES" answers given in items 31 through 34 above) of his DD Form 1966 shows he entered "None."

5.  He enlisted in the U.S. Army Reserve Delayed Entry Program on 11 January 1989.  He was discharged from the Delayed Entry Program on 6 February and enlisted in the Regular Army on 7 February 1989.  He did not complete advanced individual training for award of a military occupational specialty.

6.  A Defense Investigation Service (DIS) Report of National Agency Check (NAC)/Entrance National Agency Check (ENTNAC), dated 16 February 1989, shows the applicant was charged with aggravated assault, simple assault, recklessly endangering another person, and resisting arrest on 9 May 1988.

7.  On 24 April 1989, the applicant's commander initiated action to separate the applicant for fraudulent entry under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 7-17b, due to the applicant's failure to disclose prior arrests and charges upon enlistment.  He advised the applicant of his rights.

8.  On 27 April 1989 after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He also acknowledged that he could receive a general discharge and the results of the issuance of such a discharge.  Counsel stated the applicant was expecting an entry-level separation; however, it was not clear from his notification form what type of discharge was being recommended.

9.  On 8 May 1989, the separation authority approved the applicant's discharge with an uncharacterized entry-level separation.

10.  Accordingly, he was discharged on 17 March 1989.  He was credited with completing 3 months and 11 days of net active service with no lost time.  His service was uncharacterized.

11.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for change in his character of service.

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

	a.  Paragraph 7-17b, in effect at the time, provided that a member who concealed his or her law violations, arrest, or conviction by civil court of a felonious offense normally would not be considered for retention.  If the fraudulent entry was verified, the separation authority would take action to direct a discharge and issue an honorable or general discharge certificate.  A separation would be described as uncharacterized if processing was initiated while a member was in an entry-level status.  Entry-level status is defined as the first 180 days (6 months) of continuous active duty service.

	b.  Paragraph 3-7a provides that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	c.  Paragraph 3-7b provides that a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant indicated he had no law violations at the time of his enlistment in the Regular Army.  
2.  Upon receipt of a DIS Report of NAC/ENTNAC, the applicant's company commander initiated action to discharge the applicant for fraudulent enlistment due to the applicant's failure to disclose prior arrests and charges.

3.  After consulting with counsel, the applicant acknowledged the proposed separation action.  The separation authority approved his discharge and he was discharged accordingly on 17 March 1989.

4.  In accordance with regulatory guidelines, Soldiers who completed less than 180 days (6 months) of continuous active duty service would have their service uncharacterized.  This means the Soldier did not serve on active duty long enough for his/her character of service to be rated.  It is not meant to be a negative reflection of a Soldier's military service.  He was discharged after completing 3 months and 11 days of net active service.  Therefore, he is not entitled to a change in the character of his service from uncharacterized to honorable or general under honorable conditions.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which may have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20130016845



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130016845



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1