BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20140001041 


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 the characterization of his service, correction of item 18 (Record of Service), and correction of the reentry (RE) code shown on his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states that he was in the U.S. Army during the period shown on his DD Form 214; however, he doesn't understand why he wasn't awarded creditable service.  He states that he completed at least 90 days of service to qualify for veterans' benefits.

3.  The applicant provides a copy of the 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 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.  A DA Form 3286 (Statements for Enlistment), prepared by the applicant during his enlistment processing on 24 July 1974, shows in: 

   a.  Part II (Statement of Law Violations and Previous Conditions) –

* item 2 (Instructions to Applicant), Question Number –

* "(3)  Have you ever been arrested, cited, charged or held by Federal, State, County, City or other law enforcement authorities or by Juvenile Court or Juvenile Probation Officials for violation of any Federal Law, State Law, County or Municipal Law, Regulation or Ordinance?" – Answer:  "No" is lined out and "Yes" is in the entry
* "(4)  Have you ever been convicted of a felony or any other offense, or adjudicated a youthful or juvenile delinquent?" – 
Answer:  "No"

* item 3 (Remarks) –

* Reference Item:  3 & 4
* Offense(s):  Driving without License
* Date and Place:  1974, Fort Lauderdale, FL
* Disposition:  Dropped

   b.  It also shows, in pertinent part, "I certify that all answers to questions, statements, and entries on this form are true, correct, and complete and that the Recruiter/Career Counselor has informed me that should I intentionally conceal any information required above, I may later be subject to disciplinary action or discharge upon its discovery."
   
   c.  The applicant and Army recruiter placed their signatures on the form.

3.  A DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows the applicant enlisted in the Regular Army (RA) on 25 July 1974 for a period of 3 years.

4.  On 30 August 1974, the Defense Investigative Service, Baltimore, MD, reported the results of the applicant's Entrance National Agency Check that shows, in pertinent part, offenses/charges as follows:

* 18 October 1972 – auto theft
* 31 October 1972 – possible stolen motor vehicle, 2 years' probation

* 25 February 1974 – No Driver License and possible stolen property
* 15 April 1974 – violation of probation

5.  On 27 September 1974, the commander recommended the applicant be eliminated from service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel) for fraudulent entry.  The commander noted that the applicant admitted that he intentionally did not list the offenses (above) on his DA Form 3286.  He added that the applicant's performance of duty was less than satisfactory, he was involved in several disciplinary actions, and he was not acceptable as a Soldier in the U.S. Army.

6.  On 3 October 1974, the applicant was counseled by consulting counsel, and advised of the basis for the contemplated separation action and its effect.

7.  The immediate and intermediate commanders recommended approval of the applicant's separation from military service.

8.  On 17 October 1974, the separation authority approved the applicant's discharge under the provisions of AR 635-200, chapter 14 (Misconduct), based on fraudulent entry.  He also directed the applicant be furnished a DD Form 257A (General Discharge Certificate).

9.  A DD Form 214 shows the applicant entered active duty this period on 25 July 1974 and he was discharged under honorable conditions on 29 October 1974.  It also shows in:

* item 9c (Authority and Reason):  "X X X X"
* item 9f (Type of Certificate Issued):  DD Form 257A
* item 10 (Reenlistment Code):  "X X X X"
* item 18 (Record of Service), "00" (for all line items and blocks)
* item 27 (Remarks) –

* Misconduct – fraudulent entry
* Separation Program Designator (SPD) – "JKG"
* Chapter 14, AR 635-200
* RE-3
* Tables 2-4 and 2-5, AR 601-210 apply

10.  AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 shows that 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.  

    	(1)  A Soldier who concealed his adjudication as a juvenile offender for a felonious offense or who concealed his conviction by civil court of a felonious offense normally will not be considered for retention.

    	(2)  The offense of fraudulent enlistment occurs when the member accepts pay and allowances following enlistment procured by willful and deliberate false representation or concealment of his qualifications.  Thus, upon receipt of pay and allowances, it becomes an in-service activity by the member and may be considered in characterizing his period of service, even though he is not tried for the offense.  Once the fraudulent entry is verified, action will be taken to suspend the individual's pay and allowances, as the service is not considered creditable service.

    	(3)  Soldiers separated under this chapter may be awarded an honorable discharge, a general discharge, or a discharge under other than honorable conditions.  

   b.  Chapter 3 (Character of Service/Description of Service) provides in paragraph 3-7a, that an honorable characterization of service may be awarded to a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reason for separation.

11.  AR 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  It shows, in pertinent part, the DD Form 214 will not be issued to enlisted personnel who are dropped from a period of service because of fraudulent enlistment (chapter 14, AR 635-200).

12.  AR's provide that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or the reason for discharge. 

   a.  The SPD/RE Code Cross Reference Table provides for the assignment of RE Code 3 for members separated with SPD code "JKG" (Misconduct – Fraudulent Entry), and

   b.  RE Code 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his characterization of service, record of service, and RE code on the DD Form 214 he was issued should be corrected to show he was honorably discharged with at least 90 days of creditable active service, and an RE code that does not require a waiver.

2.  Records show the applicant enlisted in the RA on 25 July 1974; the separation authority approved his discharge under the provisions of AR 635-200, chapter 14, based on misconduct - fraudulent entry; and directed the applicant be furnished a DD Form 257A (General Discharge Certificate).

3.  The applicant's administrative separation under the provisions of AR 635-200, chapter 14, based on misconduct – fraudulent entry was in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

4.  A DD Form 214 was issued to the applicant that shows he was discharged under the provisions of AR 635-200, chapter 14, based on misconduct – fraudulent entry with service characterized as under honorable conditions and an RE code of RE-3.  However, the DD Form 214 does not show any creditable service because the period of time served during a fraudulent entry is not creditable service.  Thus, the type of discharge directed, record of service, reentry code, and narrative reason shown on the DD Form 214 he was issued are appropriate and accurate.

5.  The evidence of record shows the DD Form 214 will not be issued (emphasis added) to enlisted personnel who are dropped from a period of service because of fraudulent enlistment UP AR 635-200, chapter 14.  Thus, it appears the applicant was erroneously issued a DD Form 214.  As a result, the DD Form 214 should be voided.  Despite the foregoing, no action is being taken at this time to void the DD Form 214 that was issue to the applicant.  However, if the applicant desires that the DD Form 214 he was issued be voided, he may resubmit his application to this Board requesting such action.

6.  The separation authority directed the characterization of his service as under honorable conditions.  In any case, the evidence of record does not support the applicant's contention that the character of service for the period under review should be corrected to show he was honorably discharged.

7.  In view of all of the foregoing, there is no basis for granting 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)                                         AR20140001041



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ABCMR Record of Proceedings (cont)                                         AR20140001041



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