IN THE CASE OF:  	  

		BOARD DATE:  18 December 2014	  

		DOCKET NUMBER:  AR20140008174 


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 his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he needs his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he received an honorable discharge so he can take advantage of the Homestead Tax Relief.  There is a reduction in taxes for veterans only if their DD Form 214 shows they received an honorable discharge.  He is retired and living on a fixed income; a reduction in his annual house taxes is crucial to his situation.

3.  The applicant provides no additional 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 enlisted in the Regular Army (RA) on 31 July 1962.  His DD Form 4 (Enlistment Record - Armed Forces of the United States), dated 31 July 1962, shows he checked the "No" boxes on the DD Form 4 as follows in:

* item 27 (Have you ever been arrested, charged, or held by Federal, State, or other law enforcement authorities for any violations of any Federal law, State law, or county or municipal law regulation or ordnance)
* item 28 (Have you ever been convicted of a felony or any other offense, or adjudicated a youthful offender or juvenile delinquent)
* item 29 (Have you ever been imprisoned under sentence of any court)
* item 30 (Are you now or have you ever been on suspended sentence, parole, probation, or are you awaiting final action on charges against you)

3.  Item 38 of the DD Form 4 shows that he acknowledged, in part, that "I know that if I secure my enlistment by means of any false statement, willful misrepresentation or concealment as to my qualifications for enlistment, I am liable to trial by court-martial or discharge for fraudulent enlistment."

4.  He completed basic training at Fort Dix, NJ, and on 16 October 1962 he was assigned for advanced individual training (AIT) to the 6th Missile Battalion, Guided Missile Brigade, 71st Artillery, Fort Bliss, TX.

5.  His command subsequently submitted a request for the applicant to be issued a confidential security clearance.  The request stated the applicant was assigned duties as a clerk and would require access to classified information up to and including confidential.

6.  In a letter, dated 24 October 1962, Fort Dix was notified by the Department of the Army, Office of the Adjutant General, that a background check conducted by the Federal Bureau of Investigation (FBI) revealed the applicant had an extensive arrest and conviction record.  It was requested an investigation be conducted and, if it was determined the applicant concealed information that would have made him ineligible for enlistment, action needed to be taken under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, Absent Without Leave (AWOL), Desertion)) to separate him for misconduct.  In November 1962, this letter was forwarded to the applicant's command at Fort Bliss.

7.  On 19 November 1962, an investigation was initiated to determined if the applicant concealed information that would have made him ineligible for enlistment.

8.  On 29 November 1962, his immediate commander was notified the applicant was ineligible for a confidential security clearance as derogatory information had been received that precluded him from being eligible for a security clearance.

9.  On 29 November 1962, the applicant was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-206, for fraudulent enlistment.  On 29 November 1962, he acknowledged receipt of the notification.

10.  On 29 November 1962, he was advised by his legal counsel of the basis for the discharge action, and of the procedures and rights available to him.  He also acknowledged that he understood if he received an under other than honorable discharge that he may be deprived of many or all rights as a veteran under both Federal and State laws.  He waived consideration of his case by a board of officers and elected not to submit a statement in his own behalf.

11.  On 29 November 1962, his immediate commander initiated discharge action against him under the provisions of Army Regulation 635-206 for fraudulent enlistment with a recommendation that he be given a general discharge.  The commander listed the offenses the applicant had committed, stated he had been adjudged a juvenile offender, and that he (the applicant) did not intend to appeal his conviction by civil court.

12.  His senior commander subsequently recommended approval of the discharge action with the issuance of a General Discharge Certificate.

13.  A subsequent investigation by his command revealed additional information on his arrest and conviction record and it was determined if he had revealed the information it would have made him ineligible for enlistment.

14.  On 18 April 1963, the separation authority approved his discharge under the provisions of Army Regulation 635-209 and directed the issuance of a General Discharge Certificate.  On 29 April 1963, he was discharged accordingly.

15.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-206, by reason of fraudulent enlistment (separation program number 280) with an under honorable conditions characterization of service.  He completed 8 months and 29 days of net active service.

16.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
17.  Army Regulation 635-206, in effect at the time, established the policy and provided procedures and guidance for the discharge of service members for fraudulent enlistment when was determined they had concealed information at the time of their enlistment that would have made them eligible for enlistment.  An individual discharged under this regulation would normally be issued an Undesirable Discharge Certificate.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant failed to disclose his arrest record at the time of his enlistment in the RA.  Once the command was notified of the results of the FBI background check, an investigation was conducted and it was determined he failed to reveal information that would have made him ineligible for enlistment.  Accordingly, his commander initiated separation action against him.

2.  His separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Based on his overall record, his service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20140008174





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ABCMR Record of Proceedings (cont)                                         AR20140008174



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