BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140002454 


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 request, in effect, an upgrade of his discharge.

2.  The applicant states:

* he was denied benefits from an injury related to his service; he was injured in training and he still has a limp while walking to this day
* he was a good Soldier and he did all the training; he stayed in for 8 months before being released by the Army
* he was honest about his criminal history background, but the recruiter may have misled him

3.  The applicant does not provide any evidence. 

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 15 June 1976.  He enlisted for training in military occupational specialty (MOS) 11B (Infantryman) and assignment to the 2nd Infantry Division, Korea. 

3.  He completed and/or answered many questions on the DD Form 1966 (Application for Enlistment - Armed Forces of the United States).  Specifically, item 40 (Involvement with Police or Judicial Authorities) of his DD Form 1966 states:

Your answers to the following questions will be verified with the Federal Bureau of Investigation and other agencies to determine any previous records of arrests, convictions or juvenile court adjudications.  If you conceal such records at this time, you may, upon enlistment, be subject to disciplinary actions under the provisions of the Uniform Code of Military Justice and/or discharge from the military service with other than honorable discharge. 

4.  He answered in the negative to the questions:

	a.  Have you ever been arrested, charged, cited or held by Federal, State or other law enforcement or juvenile authorities regardless of whether the citation or charge was dropped or dismissed or you were found not guilty? 

	b.  As a result of being arrested, charged, cited, or held by law enforcement or juvenile authorities, have you been convicted, fined by or forfeited bond to a Federal, State or other judicial authority or adjudicated a youthful offender or juvenile delinquent (regardless of whether the record in your case has been sealed or otherwise stricken from the court record)?

	c.  Have you ever been detained, held in, or served time in, any jail or prison, or reform or industrial school or any juvenile facility or institution under the jurisdiction of any City, County, Federal, or foreign country?

	d.  Have you ever been awarded, or are you now under suspended sentence, parole, or probation or awaiting any action on charges against you? 

5.  He completed basic combat training at Fort Knox, KY, and he was subsequently reassigned to Fort Benning, GA, for completion of MOS training. 

6.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on/for: 

* 2 July 1976, Fort Knox, breaking restriction 
* 10 August, Fort Knox, being disrespectful toward a superior noncommissioned officer
* 9 October 1976, Fort Benning, disobeying a lawful order on two separate occasions
* 9 December 1976, Fort Benning, being absent without leave on 23 November 1976

7.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain: 

	a.  Orders Number 42-37, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, on 11 February 1977, ordering his release from the custody of the Army effective 14 February 1977. 

	b.  DD Form 214 (Report of Separation from Active Duty) which shows he was released from the custody and control of the Army on 14 February 1977 for misconduct-fraudulent entry, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14.  His DD Form 214 also shows in:

* Item 9c (Authority and Reason), Chapter 14, Army Regulation 635-200 and Separation Program Designator "YKG"
* Item 9e (Character of Service) the entry "NA" (not applicable) 
* Item 12c (Net Active Service This Period) the entry "00-00-00"

   c.  A memorandum issued by Headquarters, U.S. Army Infantry Center, Fort Benning, advising him of the reason for separation as "Misconduct - fraudulent entry" with a reenlistment eligibility of 3 (not eligible for immediate reenlistment unless a waiver is granted) 

8.  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. 

9.  Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for processing fraudulent entry cases and provided for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the service.  Section II pertained to incident of fraudulent entry.  It stated that fraudulent entry was the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known might have resulted in rejection.  Any incident which met the foregoing could be cause for discharge for fraudulent entry.  All service performed under a fraudulent enlistment was considered null and void.

	a.  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 member’s 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.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  Characterization or description of service is determined by directives authorizing separation.  The version of the regulation in effect at the time stated that for a Soldier being released from the custody and control of the Army due to a fraudulent void enlistment, "NA" would be entered in item 24 of the DD Form 214.

11.  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 "YKG" 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 14 of Army Regulation 635-200."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding his discharge action.  It appears that he concealed or failed to disclose certain information upon his enlistment.  Accordingly, his chain of command presumably initiated action to void his enlistment contract.  He was ultimately released from the custody of the Army by reason of fraudulent entry.  

2.  In the absence of evidence to the contrary, it is presumed 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.  He was assigned the proper separation code and authority for separation.  The appropriate character of service associated with this type of discharge at the time was "NA" which is correctly shown on his DD Form 214.  

3.  Based on his record of indiscipline, the applicant's service does not appear to have met the standards of acceptable conduct and performance of duty for Army personnel.  

4.  It is noted that time spent in an enlistment which is determined to be fraudulent and is terminated for this reason is not creditable service and cannot be characterized.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20140002454



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ABCMR Record of Proceedings (cont)                                         AR20140002454



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