IN THE CASE OF:  	  

		BOARD DATE:  4 September 2014	  

		DOCKET NUMBER:  AR20140000140 


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 correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) from "Fraudulent Entry" to something different. 

2.  The applicant states he was not discharged due to fraudulent entry; he was discharged due to his son being abandoned.  He has a document that was given to him at the time of his discharge that shows the purpose of his discharge was something different. 

3.  The applicant provides his DD Form 214 and the front page of a DA Form 4856 (General Counseling Form). 

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 enlisted in the Regular Army on 13 August 1987.  He was trained in and held military occupational specialty 88M (Motor Transport Operator).   In connection with his enlistment, he completed a Statement of Understanding wherein he stated: 

I am the parent of [child's name] and certify that the child has been placed in the custody of the other parent or another adult by court order as provided by state law.  I further certify this custody agreement is intended to remain in full force and effect during the term for which I am now enlisting.  I understand that if I regain custody of this child, either by court decree, or in accordance with applicable state law, or if the child is residing with me in lieu of the legal custodian, I will be processed for involuntary separation for fraudulent entry unless I can show that the regaining custody is not contrary to the above stated intent.  My child is in the custody of [Name], Relationship: Mother of Child; Address: Unknown, Cleveland, OH.  I have read, acknowledge, and fully understand the information above. 

3.  He was subsequently reassigned to Fort Hood, TX.  He was assigned to the 418th Transportation Company, 180th Transportation Battalion. 

4.  On 4 April 1988, by Disposition Form, the applicant's commander requested the applicant be processed for separation under the provisions of paragraph 7-17 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of misrepresentation of intent with regard to legal custody of child.  The applicant was in custody of his child at the time of his enlistment.  This custody is contrary to the statement made at the time of his enlistment.  His child, age three at the time, resided with the applicant's mother.  The child was never in the custody of the natural mother during the enlistment process.  This is considered grounds for discharge for fraudulent entry. 

5.  On 7 April 1988, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 for misrepresentation in that he was in custody of his son at the time of enlistment which is contrary to the statement he made on his enlistment application.  He advised the applicant of his rights.  

6.  On 7 April 1988, the applicant acknowledged receipt of the notification of separation action.  He was advised of the basis of the contemplated action to discharge him.  He waived consideration of his case by a board of officers, waived personal appearance before such board, and elected not to submit a statement on his own behalf.   He acknowledged that he understood as a result of the issuance of a discharge under honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life. 

7.  On 7 April 1988, the applicant's commander initiated separation action against him by reason of misrepresentation of intent with regard to legal custody of child. His intermediate commander recommended his immediate discharge under the provisions of chapter 7 of Army Regulation 635-200 with an honorable discharge. 

8.  On 26 April 1988, the separation authority approved the applicant's discharge under the provisions of chapter 7 of Army Regulation 635-200 and ordered the applicant discharged with an Honorable Discharge Certificate.  Accordingly, the applicant was discharged on 29 April 1988. 

9.  His DD Form 214 shows he was honorably discharged by reason of fraudulent entry, under the provisions of Army Regulation 635-200, chapter 7.  He completed 8 months and 17 days of creditable active service.  His DD Form 214 also shows in:

* Item 25 (Separation Authority) - Chapter 7, Army Regulation 635-200
* Item 26 (Separation Code) - JDA
* Item 28 - Fraudulent Entry 

10.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-years statute of limitations. 

11.  He provides the front page of a DA Form 4856 that shows on 18 March 1988, someone counseled the applicant regarding his separation.  The counselor stated that the applicant would be separated under the provisions of chapter 5 (for the convenience of the government) of Army Regulation 635-200 with an honorable discharge.  The counselor also outlined the rules regarding reentry to military service for those with custody of children. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 7-17 states a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under this chapter may be awarded an honorable discharge, a general discharge, or a discharge under other than honorable conditions.  If in an entry-level status, the characterization of service will be uncharacterized.  
13.  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 "JDA" 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 7 of Army Regulation 635-200."

DISCUSSION AND CONCLUSIONS:

1.  During his enlistment process, the applicant stated that he was the parent of a 3-year old son who was placed in the custody of his (the child's) mother.  However, his commander determined otherwise.  The commander stated the applicant was in custody of his child at the time of his enlistment.  This custody is contrary to the statement made at the time of his enlistment.  The child resided with the applicant's mother, but it appears the child was never in the custody of the natural mother during the enlistment process. 

2.  The immediate commander deemed the applicant's statement of understanding was a misrepresentation and grounds for discharge for fraudulent entry.  Accordingly, his chain of command initiated action for fraudulent entry.  He was ultimately discharged by reason of fraudulent entry.  The evidence he provided does not contradict that determination.

3.  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.  

4.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 7 of Army Regulation 635-200 for fraudulent entry.  Absent the misrepresentation regarding the custody issue, there was no fundamental reason to process him for separation.  The underlying reason for his discharge was his misrepresentation.  The only valid narrative reason for separation permitted under that paragraph is "Fraudulent Entry" and the appropriate separation code associated with this discharge is "JDA" which is correctly shown on his DD Form 214.

5.  In view of the foregoing evidence, there is no reason to change the applicant's narrative reason for separation. 



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)                                         AR20140000140





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ABCMR Record of Proceedings (cont)                                         AR20140000140



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