BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130019195 


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:

* upgrade of his under honorable conditions (general) discharge
* payment for time served

2.  The applicant states he told the recruiter at the time that he was married and his wife had one child.  The recruiter told him to tell the paymaster when he got paid.  He did so.  As a result, his chain of command informed him that he was in the Army fraudulently.  The Cuban Missile Crisis was taking place at the time. 

3.  The applicant provides no additional evidence with his application.

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 shows he enlisted in the Regular Army on 1 August 1961.  His DD Form 4 (Enlistment Record-Armed Forces of the United States) shows in item 23 (Number, Relationship and Age of Persons Dependent on You for Support) he disclosed he had one wife.  He did not disclose any children. 

3.  He was assigned to Fort Leonard Wood, MO for completion of training.

4.  On 7 September 1961, the applicant signed a statement indicating he had a son who was born prior to his marriage.

5.  On 8 September 1961, the applicant's chain of command considered the applicant's statement indicating he had two dependents at the time of his enlistment.  The chain of command determined this constituted fraudulent entry within the purview of paragraph 13g, Section II, Army Regulation 635-206 (Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) and Army Regulation 601-210 (Enlistment Program).

6.  On 13 September 1961, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 13, of Army Regulation 635-206 by reason of fraudulent enlistment.  His intermediate and senior commanders recommended approval.

7.  On 26 September 1961, consistent with the chain of command's recommendations, the separation authority approved the discharge action and ordered the applicant discharged in accordance with paragraph 13g of Army Regulation 635-206 by reason of fraudulent enlistment with the issuance of an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 29 September 1961.

8.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 29 September 1961 for misconduct-fraudulent entry, under the provisions of Army Regulation 635-206.  This form also shows he was credited with zero active service.

9.  On 19 April 1962, the Army Discharge Review Board reviewed his discharge and determined it was proper and equitable.  Accordingly, it denied his request for an upgrade of his characterization of service.

10.  Army Regulation 635-206, in effect at that time, set forth the authority for the separation of enlisted personnel for misconduct, including fraudulent entry.  Paragraph 13g of Army Regulation 635-206 established policy and prescribed procedures for processing fraudulent entry cases and provided for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the service.  Section II pertained to incidents of fraudulent entry.  It stated that fraudulent entry was the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known might have resulted in rejection.  Any incident that met the foregoing could be cause for discharge for fraudulent entry.  All service performed under a fraudulent enlistment was considered null and void.

11.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

12.  Army Regulation 37-104 (Military Pay and Allowances Policy and Procedures-Active Component) provides Department of the Army policies for entitlements and collections of pay and allowances for active duty Soldiers.  It is used in conjunction with Department of Defense Financial Management Regulation (DODFMR), Volume 7, Part A.  Paragraph 1-33 states a determination of fraudulent entry places a member in a no-pay status. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to his enlistment the applicant had a wife and a son.  He disclosed his wife; however, he failed to disclose his son.  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 that 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, his is not entitled to the requested relief.

4.  By regulation a fraudulent enlistment places a member in a no-pay status.  Since there was no service served, no payment is authorized. 

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)                                         AR20130019195





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ABCMR Record of Proceedings (cont)                                         AR20130019195



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