IN THE CASE OF: 

		BOARD DATE:	    8 July 2014

		DOCKET NUMBER:  AR20130019145 


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 character of service.

2.  The applicant states he wanted to remain in the Army, but he was discharged because of his juvenile record.

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 373 (United States Armed Forces – Consent, Declaration of Parent or Legal Guardian), dated 19 April 1974, showing his father gave permission for him to enlist.

3.  His records contain a DA Form 3286 (Statements for Enlistment), dated 29 April 1974, wherein he stated he had never been convicted of a felony or any other offense, or adjudicated as a youthful or juvenile delinquent.  He also indicated the only law violations he had committed were driving without a license and excessive acceleration.

4.  His records contain a DA Form 3286-47-R (Statements for Enlistment), dated 30 April 1974, wherein he acknowledged/certified he had been advised of and understood that a check would be made with the Federal Bureau of Investigation and other agencies immediately upon his entrance on active duty to determine previous records of arrest, convictions, or juvenile court adjudications.  He acknowledged he understood that if he had intentionally concealed or misrepresented any information regarding his record of arrests, convictions, or juvenile court adjudications, he could later be subject to disciplinary action and/or discharge from the service under other than honorable conditions.

5.  He enlisted in the Regular Army on 30 April 1974.

6.  His records contain an Entrance National Agency Check Summary which shows he was charged with/convicted of the following offenses as a juvenile offender on the dates indicated:

* 18 December 1971 – attempted burglary 
* 20 July 1972 – attempted grand larceny
* 12 May 1973 – automobile theft
* 21 November 1973 – automobile theft

7.  On 12 June 1974, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him for concealment of a felony arrest record under the provisions of paragraph 5-38 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

8.  On 13 June 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 the procedures and rights available to him.  He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He elected to submit a statement in his own behalf wherein he stated he wanted to remain in the Army.

9.  On 18 June 1974, he underwent a separation medical examination and a mental status examination.  He received medical and psychiatric clearance for separation.

10.  On or about 24 June 1974, his immediate commander initiated separation action against him for concealment of a felony arrest record upon entry in the U.S. Army under the provisions of Army Regulation 635-200, paragraph 5-38.  His commander recommended the issuance of a General Discharge Certificate and stated:

* his service in the unit had been unsatisfactory
* he demonstrated a lack of self-discipline and stamina
* he was arrested by Military Police on 11 June 1974 and charged with possession of marijuana
* he had exceptionally poor potential as a Soldier and was a detriment to his company

11.  His intermediate and senior commanders recommended approval of the discharge action and also recommended the issuance of a General Discharge Certificate.

12.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under honorable conditions on 16 July 1974 for fraudulent entry.  This form shows he completed 2 months and 17 days of active service.

13.  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.

14.  Army Regulation 635-200, paragraph 5-38 (Concealment of Arrest Record), states enlisted personnel who concealed an arrest record which did not result in civil court conviction at the time of enlistment or induction may be discharged.  This policy permits the elimination of personnel who represent a potential undesirable element and will be used only in cases where it is clearly apparent that an individual has concealed a serious arrest record.  Individuals discharged under this paragraph will be given an honorable or general discharge.  In applying this policy, the following should be considered:

* the arrest concealed must be for a felony offense (Army Regulation 
601-270 (Armed Forces Examining Stations and Armed Forces Induction Stations) contains a partial listing of felony offenses)
* a pattern of arrests is suggestive of undesirable character traits – the pattern may include misdemeanors and lesser offenses in addition to a felony
* the age of the individual when arrested and the period of time which has elapsed since the arrest
* the pre-service background of the individual (e.g., education, employment record, community activities, etc.)
* the nature of and the circumstances surrounding the arrest

15.  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 he had juvenile felony arrest record.  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, he 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 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)                                         AR20130019145



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ABCMR Record of Proceedings (cont)                                         AR20130019145



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