IN THE CASE OF:	  

		BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130016980 


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, a change in the characterization of his service from entry level status.

2.  The applicant states:

   a.  The failure to divulge his criminal background is untrue.  The recruiter had full knowledge of his criminal record and knew he did not have a high school diploma.  At the time of his enlistment, the recruiter stated they would not disclose the information in order to meet his enlistment quotas.  The recruiter stated he would use the term (GED (general educational development)) for enlistment purposes.  At the time of his separation, they called it a general separation and not a dishonorable discharge.  He was told he could reenlist if he secured his high school diploma.  He did get his high school diploma, but he never reenlisted.

   b.  His criminal background was extensive including escape attempts from the Pontiac Mental Hospital, Macomb Country Youth Home, and Whitmore Lake Boys Training School.  As a juvenile he was taken into custody at Macomb County Jail and held as an adult pending an investigation and trial.  Aside from an extensive juvenile criminal background history there is also a public record of a psychiatric history where major psychotropic drugs were administered. 

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and Department of Veterans Affairs Form 21-0958 (Notice of Disagreement).
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 record contains a DD Form 1966/3 (Record of Military Processing – Armed Forces of the United States), dated 3 December 1987, which lists in:

* Item 24 (Education) – he indicated he had not graduated from high school
* Item 35 (Law Violations) – he indicated he had no law violations
* Item 41 (Date Verification by Recruiter) – the recruiter indicated he had verified the applicant's GED

3.  A DD Form 398-2 (Department of Defense – Personnel Security Questionnaire), dated 3 October 1987, shows he indicated in item 14 (Arrests) he had not been arrested, detained, cited, held by Federal, State, or other law enforcement or juvenile authorities or any juvenile facility or institution.

4.  He enlisted in the Regular Army, in pay grade E-1, on 3 December 1987.  He did not complete advanced individual training for award of a military occupational specialty. 

5.  A Defense Investigative Service (DIS) Report of Investigation (ROI), dated 11 March 1988, lists the following record for the applicant:

* 21 May 1981 – Shelby Township, larceny from a motor vehicle
* 17 March 1982 – larceny (took an 89 cent candy bar from a store)
* 18 October 1982 – pled guilty to the foregoing charge
* 17 November 1982 – pick-up by police and lodged as a runaway
* 18 November 1982 – larceny of a bicycle from a building
* 23 November 1982 – placed back on probation on original charges


* 2 December 1982 – larceny over $100.00, dismissed without prejudice
* 8 March 1983 – Juvenile Court review-probation continued
* 9 September 1983 – cursory supervision continued
* 1 November 1983 – runaway-temporary custody order issued
* 16 November 1983 – breaking and entering (B&E) incident
* 21 November 1983 – picked up by police, placed in youth home, and charged with B&E
* 5 December 1983 – released from youth home
* 13 December 1983 – continued as temporary ward, pled guilty to B&E
* 22 December 1983 – released to parents
* 22 January 1984 – malicious destruction of property (MDOP)
* 26 January 1984 – revocation hearing, pled guilty to MDOP
* 28 February 1984 – MDOP over $100.00 and felony aggravated assault filed by youth home superintendent
* 13 August 1984 – placed at Maxi School for Boys
* 30 August 1984 – larceny, no charges
* 10 September 1984 – discharged as a State Ward with "Improved Adjustment"
* 21 September 1986 – arrested for B&E, pled guilty
* 8 June 1987 – sentenced to three years' probation with the first three months to be served in jail, fined, and ordered to pay restitution and obtain alcohol counseling

6.  On 30 March 1988, after consulting with counsel, the applicant acknowledged receipt of the proposed action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 7-17b, for Fraudulent Entry.  He also acknowledged he could receive a general and the results of the receipt of a general discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

7.  Between 4 to 11 April 1988, he received counseling for unsoldierly conduct, being in an unauthorized area, public drunkenness, failing to pay cab fare, being absent without leave, numerous acts of misconduct, and his fraudulent enlistment.

8.  On 6 April 1988, the applicant's company commander initiated action to separate the applicant for fraudulent entry based on his concealment of his arrest for B&E and conviction by a civil court for a felony offense, with an entry-level separation.  The applicant acknowledged the action on the same day.


9.  On 8 April 1988, he accepted nonjudicial punishment for disobeying a lawful order by wrongfully consuming alcohol under the legal drinking age of 21 years.

10.  On 12 April 1988, the applicant's company commander recommended approval of the applicant's discharge.  The company commander stated that since the notification of his fraudulent enlistment, the applicant had become a disciplinary problem and had failed to obey orders.  As a result of the applicant's misconduct, he had demonstrated a lack of self-discipline and aptitude toward being retained in the U.S. Army.

11.  On 15 April 1988, the separation authority approved the applicant’s discharge with an uncharacterized entry level separation.

12.  Accordingly, he was discharged on 25 April 1988.  He was credited with completing 4 months and 23 days of net active service with no time lost.  His service was characterized as entry-level status.

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

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 7-17b – a member who concealed his or her 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 discharge and issue an honorable or general discharge certificate.  A separation would be described as an entry level separation if processing was initiated while a member was in entry level status.  Entry level status was the first 180 days (6 months) of continuous active duty.

   b.  Paragraph 3-7a – 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 - 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 applicant's contention was carefully considered and found not to have merit.  His record contains documentation which shows he indicated he had no pre-enlistment law violations.  Upon receipt of a DIS ROI the applicant's company commander initiated action to discharge the applicant for fraudulent enlistment based on the concealment of his arrest for B&E and conviction for a felony offense.  

2.  The company commander stated that since the notification of his fraudulent enlistment, the applicant had become a disciplinary problem and had failed to obey orders.  After counseling with counsel, the applicant acknowledged the separation action.  The separation authority approved his discharge and he was discharged accordingly on 25 April 1988.  

3.  In accordance with regulatory guidelines, Soldiers who had completed less than 180 days (6 months) of continuous active duty would have their service characterized as an entry level status.  That meant that the Soldier had not been in the Army long enough for his/her character of service to be rated as honorable or otherwise.  It was and still is not meant to be a negative reflection of a Soldier's military service.  He was discharged after completing 4 months and 23 days of net active service.  Therefore, he is not entitled to a change in the characterization of his service from entry level status to an honorable or general discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize 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)                                         AR20130016980





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ABCMR Record of Proceedings (cont)                                         AR20130016980



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