BOARD DATE:	7 August 2014  

		DOCKET NUMBER:  AR20130021100 


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 removal of the following documents from her records:

* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 10 July 1980
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 August 1982

2.  The applicant states:

   a.  The signature shown on this DA Form 2627 does not belong to her and she did not have any marijuana.  She never signed this document as she was on leave when this incident was supposed to have happened.  Her stepfather had just passed and she was sent home for the funeral by the Red Cross.  
   
   b.  Before leaving she had placed all of her personal belongings in her locker and the locker was secured with a chain and a lock.  When she returned she found her locker was unchained.  Her roommate told her that the sergeant had been in her locker and the sergeant had found marijuana.  Before she left, her locker was inspected by this sergeant and he was the one who placed the chain on her locker.

   c.  The fraudulent entry on her DD Form 214 is untrue.  She received an honorable discharge and reenlisted in the Army.  At the time, she reenlisted because the Army was trying to meet a certain quota of enlisted personnel.
3.  The applicant provides copies of the contested DA Form 2627, dated 10 July 1980, and her DD Form 214.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA) on 31 May 1978 for 3 years.  She served in Panama from 3 October 1978 through 2 October 1980.  

3.  On 10 July 1980, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ, for wrongfully possessing some unknown amount of marijuana, on or about 30 May 1980.  

4.  On 5 September 1980, she accepted NJP under the provisions of Article 15 of the UCMJ, for failing to go, at the prescribed time, to her appointed place of duty, on 19 August and 22 August 1980.  Further, she disobeyed a lawful order on    22 August 1980.  

5.  Orders Number 68-67, issued by Headquarters, 2nd Armored Division, Fort Hood, TX on 7 April 1981, honorably discharged her, effective 6 April 1981, for the purpose of immediate reenlistment.

6.  On 7 April 1981, she reenlisted in the RA for 3 years.  Her DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows she reenlisted for training in military occupational specialty (MOS) 74D (computer machine operator).

7.  Orders Number 214-19, issued by Headquarters, 2nd Armored Division, Fort Hood, TX on 29 October 1981, promoted her to pay grade E-4, effective              1 November 1981.  The orders list her MOS as 95B (military policeman). 

8.  On 4 June 1982, the applicant's company commander notified her of her intent to separate her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 14, based on evidence of her fraudulent entry into the service for concealment of other disqualification.  Her company commander stated the alleged fraudulent entry was based on her security clearance being revoked at the time of her reenlistment into an MOS requiring a clearance.  The applicant acknowledged receipt of the notification memorandum on this same date.  

9.  Her commander advised her of her rights and requested that she submit a sworn statement by completing the attached DA Form 2823 (Sworn Statement); however, she refused to make a sworn statement.  The statement includes the entry, "Service member refused to make a sworn statement."  

10.  Her record is void of all the documentation pertaining to her discharge; however, her record contains the following:

   a.  A DA Form 2962 (Security Termination Statement), dated 6 August 1982, wherein she was notified her security clearance was terminated.

   b.  Orders Number 151-14, issued by Headquarters, 2nd Armored Division, Fort Hood, TX on 30 July 1982, which shows she was released from the custody and control of the Army, effective 6 August 1982.

   c.  A DD Form 214, which shows she was discharged in pay grade E-3 on 6 August 1982, under the provisions of Army Regulation 635-200, chapter 14, by reason of Misconduct-Fraudulent Entry.  She was credited with completing 2 years, 10 months, and 6 days of net active service.  Her service was characterized as "NA."  

11.  Army Regulation 27-10 (Military Justice), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice.  The regulation stated in:

	a.  Chapter 3 - NJP imposed to correct misconduct, as a result of intentional disregard of or failure to comply with prescribed standards of military conduct, in violation of the UCMJ, could be set aside or removed upon determination that, under all the circumstances of the case, a clear injustice had resulted.

   b.  Paragraph 3-37(1) – the decision to file the original DA Form 2627 on the performance or restricted sections in the official military personnel file (OMPF) would be made by the imposing commander at the time punishment was imposed.
   c.  Paragraph 3-43 – contained guidance on the transfer or removal of DA Forms 2627 from the OMPF.  Applications for removal of a DA Form 2627 from a Soldier’s OMPF based on error or injustice would be made to the ABCMR.  There must compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

   d.  Paragraph 7-2a – once an official document has been properly filed in the OMPF, it was presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  

   e.  Paragraph 7-2b(1) – unfavorable documents could be appealed on the basis of proof that their intended purpose had been served and that their transfer would be in the best interest of the Army.  The burden of proof rest with the appellant to provide substantial evidence that those conditions had been met.

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

   a.  Chapter 14 – members could be separated for misconduct and specific categories included fraudulent enlistment/reenlistment.  

   b.  Paragraph 14-5(a)(3) - the commander exercising general court-martial jurisdiction would void the fraudulent entry by issuing orders releasing the member from Army control for fraudulent entry.  Commander were authorized to void fraudulent enlistments/reenlistments when the service of the member was of too short duration to properly apply establishment standards for award of an honorable, general, or an under other than honorable discharge, unless other conditions exist which clearly justify award of such a discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the DA Form 2627 she received on 10 July 1980 should be removed from her records.  

2.  She contends that her Article 15 was not facially valid but she does not support her contention with evidence.  The Board is not an investigative agency and therefore the contention that she never signed this document is rejected.  In the absence of evidence to the contrary, it must be presumed the signature on this form is hers.  Additionally, there is no evidence in her records and she provides none to show show the DA Form 2627 in question was issued in error or was unjust, in whole or in part, to support its removal from her OMPF.  

3.  In accordance with regulatory guidance there must be compelling evidence to support the removal or transfer of a properly-completed, facially-valid DA Form 2627 from a Soldier’s records.  Absence evidence meeting this regulatory standard there is an insufficient evidentiary basis to support her request. 

4.  The applicant contends the DD Form 214, for the period ending 6 August 1982, should be removed from her records.  

5.  Her record is void of all documentation pertaining to her discharge; however, the available documentation shows that upon notification of the intent to separate her for fraudulent entry, based on her security clearance being revoked at the time of reenlistment into the MOS requiring a clearance, she was advised of her rights.  She was offered the opportunity to make a statement but she declined to do so. 

6.  She provided no evidence or a convincing argument to show her separation was erroneous or unjust, and her records contain no evidence that shows her separation was unjust.  The evidence shows she was well aware of the reason for her separation on 6 August 1982.

7.  Without evidence to the contrary, it appears her administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize her rights.  It is presumed she was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting her 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)                                         AR20130021100





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ABCMR Record of Proceedings (cont)                                         AR20130021100



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