IN THE CASE OF:	  

		BOARD DATE:	  3 September 2014

		DOCKET NUMBER:  AR20130020529 


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 his 26 June 1980 discharge to be changed to an honorable discharge (HD).

2.  The applicant states he is in need of medical care and a government loan.

3.  The applicant provides no additional documents.

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 show he initially enlisted in the Regular Army on 11 March 1975 and served until he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of "for the good of the service" (in lieu of trial by court martial) on 19 March 1976.  The DD Form 214 issued him at that time shows he completed 1 year and 9 days of creditable active duty service.  It also shows he was issued an under other than honorable conditions (UOTHC) discharge.

3.  On 6 September 1978, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable and voted to deny his request for an upgrade.

4.  On 27 November 1978, the applicant enlisted into the RA for a period of 4 years.  He was trained in and served in military occupational specialty 71P (Flight Operations Coordinator).

5.  On 20 March 1980, his immediate commander initiated separation action against him for a fraudulent enlistment.  The commander stated the applicant concealed his prior service when he enlisted.  

6.  On 3 April 1980, the applicant acknowledged receipt of the separation action taken against him.  He acknowledged he had been advised of the basis for the contemplated action regarding his alleged fraudulent entry into the service.

7.  On 2 and 13 May 1980, his battalion and brigade commanders recommended approval to discharge the applicant from active duty prior to his expiration term of service based on fraudulent enlistment.  These commanders also opined his conduct, duty performance, and attitude were unacceptable.

8.  On 16 June 1980, the separation authority disapproved the recommendation to eliminate the applicant from service and directed his enlistment contract voided in accordance with chapter 14 of Army Regulation 635-200.  Accordingly, the applicant was released from the custody and control of the Army on 26 June 1980. 

9.  His DD Form 214 shows he was released from the custody and control of the Army on 26 June 1980 for misconduct-fraudulent entry, under the provisions of Army Regulation 635-200, chapter 14.  Item 12c (Net Active Service This Period) of this form shows the entry "00-00-00," item 24 (Character of Service) shows the entry "NA" (not applicable), and item 26 (Separation Code) shows the entry "YKG."

10.  Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 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 incident 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 which 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, 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 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

13.  Army Regulation 635-5 (Separation Documents), as then in effect, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  Characterization or description of service is determined by directives authorizing separation.  A Soldier being released from the custody and control of the Army due to a fraudulent void enlistment, "NA" would be entered in item 24 of the DD Form 214.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation in effect at the time showed that SPD "YKG" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Fraudulent Entry" and the authority for discharge under this SPD was "chapter 14 of Army Regulation 635-200."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that upon his enlistment in the Regular Army in 1978 the applicant concealed his prior service which ended under the provisions of chapter 10, Army Regulation 635-200, "for the good of the service."  Accordingly, his chain of command initiated action to void his enlistment contract.  He was ultimately released from the custody of the Army by reason of fraudulent entry.  

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.  He was assigned the proper separation code and authority for separation.  The appropriate character of service associated with this type of discharge at the time was "NA" which is correctly shown on his DD Form 214.

3.  Time spent in an enlistment which is determined to be fraudulent and is terminated for this reason is not creditable service and cannot be characterized.  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 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)                                         AR20130020529





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ABCMR Record of Proceedings (cont)                                         AR20130020529



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