IN THE CASE OF:  	  

		BOARD DATE:  4 November 2014	  

		DOCKET NUMBER:  AR20140004775 


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 an upgrade of his general discharge under honorable conditions.

2.  The applicant states he believes that what he did at the time was very honorable.  When he tried to enlist in 1973, he was not able to do so based on a reentry eligibility (RE) code of 4 (should read 3A) from his prior period of active duty service.  According to his first DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), he served in Vietnam and was honorably discharged.  He comes from a family of nine boys so he enlisted under one of his brother's names.  He is the second oldest boy in his family and since he had already served in Vietnam, he thought he could handle it better than his brother.  Forty-one years later he learned that "under honorable conditions" is not considered an honorable discharge.  He thought this country was based on taking care of one's family.

3.  The applicant provides his DD Form 214 for the period ending 27 March 1973.

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 was inducted into the Army of the United States on 13 August 1968 under the name O____ M____ B____ and social security number (SSN) XXX-XX-5275.  He served in Vietnam from 17 April 1969 to on or about 31 March 1970.  He was released from active duty on 31 March 1970 as an overseas returnee in the rank of private/E-1 and transferred to the U.S. Army Reserve to complete his service obligation.  He completed 1 year, 7 months, and 18 days of active service during this period.  His DD Form 214 shows his service was characterized as honorable.  He was assigned an RE code of 3A.

3.  On 14 February 1973, he enlisted in the Regular Army for a period of 2 years under the name O____ M____ B____ and SSN XXX-XX-5275.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he had no prior service.  His DD Form 398 (Statement of Personal History) shows he entered the statement "No Federal Service" in item 8 (Are You Presently a Member of a U.S. Army Reserve or National Guard Organization?).

4.  Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, Special Orders Number 86, dated 27 March 1973, discharged him by authority of Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release) effective the same date.

5.  His records do not contain a separation packet.  However, his DD Form 214 for this period of service shows he was discharged under honorable conditions in the rank of private/E-1 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5a.  He completed 1 month and 11 days of active service during this period.

6.  There is no evidence that he requested a waiver of the RE code 3A disqualification from his prior period of active duty service

7.  Army Regulation 635-200, chapter 14, in effect at the time, established policy and prescribed procedures for processing of fraudulent entry cases and provided for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the service.  Paragraph 14-5 defined fraudulent entry as 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 definition might be cause for discharge for fraudulent entry.  Paragraph 14-5a specifically addressed concealment of prior service and stated the establishment of the identity of Army personnel and verification of prior service in any of the U.S. Armed Forces normally requires only comparison of fingerprints and examination of records.  Accordingly, commanders will not request field investigations in order to establish evidence of prior military service.

	a.  To support an administrative action, a statement of service, as distinguished from a certificate of service, furnished by The Adjutant General is sufficient evidence.

	b.  If trial by court-martial is contemplated, a certificate of service furnished by The Adjutant General is required.

	c.  The character of service will be based on in-service records and activities.  False pre-enlistment or pre-induction records will not be used as a basis for characterizing a period of service.

8.  Army Regulation 635-200 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.

9.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time of the applicant's first term of service, prescribed eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army and U.S. Army Reserve and provided a list of Armed Forces RE codes.  RE code 3A applied to persons who did not meet reentry criteria at the time of separation, but the disqualification was waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he enlisted under one of his brother's names to overcome the RE code 3A disqualification from his prior period of active duty service appears to be without merit.  There is no evidence that he enlisted under any name other than his own.

2.  The evidence of record shows he intentionally concealed his prior period of active service when he enlisted in the Regular Army in 1973.  As a result, he was discharged for fraudulent entry after completing only 1 month and 11 days of active service.

3.  Based on his brief period of service and the reason for his separation, a general discharge under honorable conditions appears to be appropriate.  His records contain no evidence of conduct and performance of duty so meritorious that would warrant an honorable discharge.

4.  In view of the foregoing evidence, there is no basis for granting 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 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)                                         AR20140004775



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ABCMR Record of Proceedings (cont)                                         AR20140004775



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