BOARD DATE: 30 September 2014
DOCKET NUMBER: AR20140001119
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 general discharge under honorable conditions be upgraded to an honorable discharge.
2. The applicant states he was married to another Soldier and they were both stationed in Korea. After his spouse became pregnant she was discharged and sent back to the United States. She had a high-risk pregnancy and he wanted to go home to be with her. His chain of command told him, in effect, if he wanted to go home he would have to either change his military occupational specialty (MOS) or receive a discharge. He chose the discharge.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 filled out a DD Form 1966 (Record of Military Processing - Armed Forces of the United States) dated 1 December 1987 in connection with his enlistment.
a. In item 35 (Law Violations) of this form he was required to list all involvement with law enforcement authorities. He listed the following offenses:
* On 15 October 1979, in Lawton, OK, he was charged with running a stop sign and had to pay a $15.00 fine
* On 2 March 1980, in Lawton, OK, he was charged with running a stop sign and had to pay a $15.00 fine
b. In item 36 (Character and Social Adjustment) he checked a no block in part a.1. indicating he had never used narcotics, LSD, or other drugs.
3. He enlisted in the Regular Army on 1 December 1987 and held MOS 98J (Electronic Warfare/Signal Intelligence Noncommunications Interceptor).
4. His record contains a Federal Bureau of Investigation (FBI) record report, dated 8 February 1988. The FBI report contains the following list of offenses, some of which were handwritten:
* On 4 August 1981, in Lawton, OK, he was arrested for/charged with concealing or withholding stolen property after burglary of a neighbor's house
* On 7 February 1985, in Waycross, GA, he was arrested for/charged with criminal trespassing, given a 30-day suspended sentence, taken to the county line, and removed from the county
* On 11 October 1987, in Columbia, SC, he was arrested for/charged with possession of narcotics and littering and was released on bond
* In January 1987 a court order was issued ordering him to pay back rent; he was jailed for two weeks and ordered to pay restitution
* In June 1988, he was arrested under a criminal warrant in Georgia for the forgery of two checks and received a 5-year suspended sentence and a $3,000.00 fine
5. His record contains a series of sworn statements/interviews dated from
April 1988 to 26 October 1988 which shows he stated or admitted to
interviewers/investigators that he was guilty of all the listed charges except for the charge pertaining to possession of narcotics. He stated in that case, he was only charged with littering. However, he also admitted to having used marijuana and hashish on numerous occasions. Additionally, it should be noted that at the beginning of the interviews he denied many of the offenses with which he had previously been charged. After the interviewer informed him he could get into serious trouble if it was later discovered that he had been dishonest, he provided various statements recanting many of his previous statements and admitted to the civil and criminal offenses with which he had been charged, except for possession of drugs. He also admitted to using marijuana and hashish at this time.
6. On 7 March 1989, his commander notified him he was initiating action to separate him under the provisions of chapter 7 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for a defective enlistment due to fraudulent enlistment through deliberate material misrepresentation, omission, or concealment of information, which, if known and considered by the Army at the time of his enlistment, might have resulted in a rejection. His commander informed him he was recommending he receive a general discharge and advised him he had the right to consult with military counsel or civilian counsel at no expense to the government; and submit a written statement in his own behalf.
7. On 8 March 1989, he acknowledged he had been advised by his consulting counsel of the basis for the contemplated action for his separation and its effects, of the rights available to him, and the effect of any action by him in waiving his rights. He understood that if he was not being considered for a discharge under other than honorable conditions, he would neither have his case considered by a board of officers, nor have a right to counsel for representation. He elected not to submit statements in his own behalf and to have consulting counsel for representation.
8. He understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further
understood that as the result of the issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.
9. On 7 March 1989, his commander recommended he be separated under the provisions of chapter 7 of Army Regulation 635-200 for a defective enlistment
due to fraudulent enlistment through deliberate material misrepresentation, omission, or concealment of information, which, if known and considered by the Army at the time of his enlistment, might have resulted in a rejection.
10. On 13 March 1989, the approving authority approved his discharge with a general discharge under honorable conditions.
11. On 21 March 1989, he was discharged by reason of erroneous entry, reenlistment, or extension. Authority for separation is shown as Army Regulation 635-200, paragraph 7, section II. He completed 1 year, 3 months, and 21 days of active service that was characterized as under honorable conditions (general).
12. There is no indication he applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within that boards 15-year statute of limitations.
13. Army Regulation 635-200, chapter 7 provides the authority, criteria, and procedures for the separation of Soldiers because of minority, erroneous enlistment, re-enlistment or extension of enlistment, defective enlistment agreement, or fraudulent entry. Paragraph 7-17 contains guidance on separation for fraudulent entry. It states that fraudulent entry is the procurement of an enlistment, re-enlistment, 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 re-enlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver.
14. 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 members 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant clearly concealed his interactions with law enforcement officials and his civil convictions from his recruiter; therefore, separation was appropriate.
2. The evidence shows he was properly discharged in accordance with regulations in effect at the time. The reasons for discharge were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would tend to jeopardize his rights.
3. The separation authority could have directed the issuance of an honorable discharge; however, he elected not to do so. It is presumed the separation authority considered his overall record and did not find his service sufficiently meritorious to warrant an honorable discharge. The available records support the separation authority's decision and there is no evidence of inequity or injustice in the discharge he received.
4. In view of the foregoing, there is insufficient evidence to grant 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.
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