IN THE CASE OF:
BOARD DATE: 18 November 2014
DOCKET NUMBER: AR20140004519
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 the reason for her discharge be changed from fraudulent entry to hardship/sole parent.
2. The applicant states:
a. She left active duty to fight for custody of her daughter. When she entered the Army, her mother was given guardianship rights and took care of her daughter. She served almost 2 years of her 5-year obligation when the child's father attempted to kidnap her from the applicant's mother and then petitioned the courts for full custody. A lot of people who've never served view military life as unstable and she feared the court would do the same, so she felt leaving was the only option she had to avoid losing her daughter. She did nothing fraudulent upon entry, while she served, or when she ended her term of service.
b. She received an honorable discharge and wasn't aware "fraudulent entry" was listed. Her time of service was brief but she served with pride and honor and did nothing fraudulent. She only discovered this after applying for a Department of Veterans Affairs loan to help her daughter purchase her first home.
3. The applicant provides a copy of her 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. On 28 November 1990, while enlisting in the U.S. Army Reserve, Delayed Entry Program, the applicant executed a DA Form 3286-69 (Statement of Understanding for Persons Having Dependents in the Custody of Another). She stated that her named daughter had been placed in the custody of another by court order and she acknowledged that if the child was residing with her she would be processed for involuntary separation for fraudulent entry (emphasis added) unless she could, "show that regaining custody of the child was not contrary to the above stated intent; e.g., death, or incapacity of other parent or custodian."
3. On 3 December 1990, the applicant enlisted in the Regular Army. She completed training and was stationed in Alaska. On 14 August 1992, the applicant, then a private first class (E-3), wrote a "Memorandum for To Whom it May Concern" stating that her daughter was residing with her and had been since 29 August 1992.
4. The applicant was notified of initiated separation action for fraudulent entry. She consulted with counsel and waived her rights. The chain of command recommended separation with an honorable discharge. On 30 November 1992, the applicant was so separated in accordance with Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 7-17.
5. Army Regulation 635-200 states, in paragraph 7-17, "Misrepresentation of intent with regard to legal custody of children. Soldiers who were applicants without a spouse at the time of enlistment and who executed the certificate required by AR 601210 [Regular Army and Army Reserve Enlistment Program] will be processed for separation for fraudulent entry if custody of the children is regained by court decree, as provided by State law, or as a result of the children resuming residency with the Soldier instead of the legal custodian. Because the Soldier certified at enlistment that the custody arrangement was intended to remain in full force and effect during the term of enlistment, the burden is on the Soldier to demonstrate that the regaining of custody is not contrary to statements made at the time of enlistment."
DISCUSSION AND CONCLUSIONS:
1. The applicant acknowledged that if her child was living with her she would be processed for involuntary separation for fraudulent entry.
2. Although the applicant seems to feel she did nothing fraudulent, what transpired in her case was exactly what she acknowledged in advance would happen. She provided no evidence to show she was facing a hardship.
3. The applicant has submitted neither probative evidence nor a convincing argument in support of the 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) AR20140004519
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ABCMR Record of Proceedings (cont) AR20140004519
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