IN THE CASE OF:	  

		BOARD DATE:	  6 November 2014

		DOCKET NUMBER:  AR20140003471 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

	a.  his character of service as honorable; and

	b.  an "X" in the "Yes" block of item 16 (High School Graduate or Equivalent).

2.  The applicant states:

	a.  Apparently the Army thought he had been convicted of serious crimes, but he was not.  He was charged with five offenses based on one family-related incident and he was convicted of one charge.  He was placed on probation after the charge was reduced.  His probation was terminated because of his entry in the Army.

	b.  He completed basic training and the Food Service Specialist Course and he received orders to Fort Hood, TX.  While waiting to travel he was approached by a captain and asked if he had committed the crimes.  He told the captain he was accused of the crimes, four charges had been dropped, he was convicted of a lesser charge and placed on probation, and the probation was terminated upon his entry in the Army.  Apparently the captain did not care and he discharged him.

	c.  He served honorably and faithfully through his training and did nothing wrong.  He deserves an honorable discharge.

	d.  He had a general educational diploma (GED).

3.  The applicant provides:

* two applications
* DD Form 214
* court documents

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.  Records show the applicant was arrested for rape, kidnapping, and felonious assault in 1982.  In March 1984, he was tried and found guilty of assault and he was sentenced to 6 months of confinement.

3.  His records contain a letter from his high school principal, dated 26 September 1984, who states the applicant attended high school up to and including his senior year; however, he did not have enough points for a diploma.

4.  He enlisted in the Regular Army on 27 December 1984 for 3 years.  He did not list his civil arrest on his enlistment contract.  He completed his training and was awarded military occupational specialty 94B (Food Service Specialist).

5.  On 20 May 1985, discharge proceedings were initiated against him for fraudulent entry under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 7.  The unit commander based his recommendation for separation on the following:

* the applicant failed to list any arrests for kidnapping, rape, and felonious assault as well as his conviction for assault on his enlistment contract
* this made his enlistment fraudulent
* his actions violated the Army's standards and rendered him unfit for further service

6.  A letter from his intermediate commander, dated 23 May 1985, states the applicant "dropped out of high school in the 12th grade due to insufficient number of credit hours to graduate…."

7.  On 30 May 1985, the separation authority approved the recommendation for separation and directed an entry-level separation.

8.  He was discharged on 30 May 1985 for fraudulent entry under the provisions of Army Regulation 635-200, chapter 7.  He completed 5 months and 4 days of creditable active service.

9.  His DD Form 214 shows in:

* item 24 (Character of Service) – "ENTRY LEVEL STATUS"
* item 16 – No

10.  There is no evidence of record showing he was issued a GED prior to his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 service will be uncharacterized.  Entry-level status is defined as the first 180 days of continuous active service.

	b.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was discharged for fraudulent entry on 30 May 1985 after completing 5 months and 4 days (154 days) of active service and the DD Form 214 properly shows his character of service as "ENTRY LEVEL STATUS."

2.  Although the applicant contends he had a GED, there is no evidence of record and he provided no evidence showing he was issued a GED.  Therefore, there is insufficient evidence on which to base amending item 16 of his DD Form 214.

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)                                         AR20140003471



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ABCMR Record of Proceedings (cont)                                         AR20140003471



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