IN THE CASE OF:	 

		BOARD DATE:	  30 September 2014

		DOCKET NUMBER:  AR20140001779 


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, in effect, correction of his record to show he was honorably discharged on 16 November 1977.

2.  The applicant states his service and loyalty to this nation were never in question.  The fact that another Soldier essentially lied to recruit him into the Regular Army was not something that he should have been held at fault for.  Therefore, he believes his release from active duty should have been honorable.

3.  The applicant provides:

* Headquarters, 101st Airborne Division (Air Assault) fraudulent enlistment letter
* Headquarters, 101st Airborne Division (Air Assault) Orders 217-204
* DD Form 214 (Report of Separation from Active Duty) for the period ending 1 October 1975
* DD Form 214 for the period ending 16 November 1977

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 record shows he enlisted in the Army National Guard (ARNG) in March 1975.  He entered active duty for training on 20 May 1975.  He completed ADT and was awarded military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist).  On 1 October 1975, he was honorably released from ADT and reverted back to the Kansas ARNG.

3.  On 17 August 1976, he enlisted in the Regular Army for 4 years.  The DD Form 1966 (Application for Enlistment - Armed Forces of the United States) completed in connection with his enlistment shows in item 40 (Involvement with Police or Judicial Authorities) that he had not been arrested, charged, cited, or held by law enforcement or juvenile authorities or other involvement with law enforcement authorities.  Item 42 of this form shows he acknowledged he understood that the armed forces representative who would accept his enlistment did so in reliance on the information provided by the applicant in the document.  He further acknowledged that if any of the information was knowingly false or incorrect he could be prosecuted under Federal civilian or military law or subject to administrative separation proceedings and, in either instance, he could receive a less than honorable discharge.  He certified that the information given by him in the document was true, complete, and correct to the best of his knowledge and belief. 

4.  His record contains what appears to be a continuation sheet for a DD Form 1584 (National Agency Check Request), dated 20 August 1976.  This document lists the following:

* assault on a police officer - September 73 - Kansas City, KS - parole
* concealed weapon - May 69 - Kansas City, KS - fined
* trespassing - March 68 - Kansas City, KS - fined

5.  He completed advanced individual training and was awarded MOS 62M (Rough Terrain Forklift and Loader Operator).  He was promoted to the rank of private first class/pay grade E-3 on 15 January 1977.

6.  His record contains a Headquarters, 101st Airborne Division (Air Assault) letter, subject:  Fraudulent Enlistment, dated 31 October 1977.  In this letter a major general stated that Department of the Army message 302228Z March 1976 required voidance of an enlistment when evidence established possible recruiter connivance.  The applicant's statement alleged that his recruiter assisted in perpetrating the fraudulent enlistment.  Accordingly, his enlistment was voided.  Release from the control of the Army was directed under the provisions of paragraph 14-4c of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  It further stated that the applicant's request for immediate enlistment had been considered.  In view of the character of his service and his eligibility to enlist with a waiver, his request was approved.

7.  Headquarters, 101st Airborne Division (Air Assault) Orders 217-204, dated 11 November 1977, released him from custody and control of the Army effective 16 November 1977.

8.  His complete separation packet is not available for review and the available documentation does not show the basis for the determination that his entry on active duty was fraudulent.  However, his record contains a DD Form 214 for the period ending 16 November 1977.  This form shows in:

* item 9c (Authority and Reason) – "Para 14-4c, AR 635-200"
* item 9e (Character of Service) - "Release from Military Control"
* item 9f (Type of Certificate Issued) - "NA" (not applicable)
* item 18a (Net Active Service this Period) - "000000"

9.  Army Regulation 635-200 establishes policy and prescribes procedures for processing fraudulent entry cases and provided for the administrative disposition for enlisted personnel for misconduct by reason of fraudulent entry into the service.  At the time, paragraph 14-4 pertained to incidents of fraudulent entry.  It stated that fraudulent entry was the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This included all conditions that would have been disqualifying without a waiver.

	a.  Subparagraph 14-4c stated, in pertinent part, that concealment of conviction by civil court was cause for separation for fraudulent entry.

	b.  It states a DD Form 214 will be prepared and distributed in accordance with paragraph 2-7d of Army Regulation 635-5 (Separation Documents) on all individuals released from custody and control due to void service.

10.  Army Regulation 635-5 at the time prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are noted.  However, in connection with his enlistment he certified that he had no involvement with law enforcement authorities.  Based on the document attached to the DD Form 1584 contained in his record, it appears he withheld information regarding three instances (assault on a police officer, concealed weapon, and trespassing) of involvement with law enforcement authorities.  Therefore, evidence indicates he was ultimately responsible for the incorrect entries on his DD Form 1966.

2.  The applicant's complete separation packet is not available for review.  However, the Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that the applicant was properly discharged under the provisions of Army Regulation 635-200, chapter 14, for fraudulent entry. 

3.  The Government determined that his enlistment constituted fraudulent entry and the time he served on active duty was considered null and void.  There is no evidence of error or injustice in this case.  Therefore, in view of the foregoing, there is an insufficient basis for granting the applicant's request.

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)                                         AR20140001779



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ABCMR Record of Proceedings (cont)                                         AR20140001779



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