BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140010086 


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 under honorable conditions discharge. 

2.  The applicant states:

* he was stationed in Panama from 1972 to 1973 and he was sent to Nicaragua, but the U.S. Government stated he never left continental United States
* the Government said he was absent without leave (AWOL); this was not the case
* he was hospitalized at Fort Clayton Military Hospital in 1973; that is why his discharge should be upgraded 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 for a period of 2 years on 25 August 1972.  He was trained in and held military occupational specialty 36K (Field Wireman). 

3.  On 8 March 1973, while in training at Fort Dix, NJ, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 7 to 9 January 1973, 
9 to 16 February 1973, and 23 to 26 February 1973.   

4.  On 29 March 1973, agents of the U.S. Army Criminal Investigation Command conducted an investigation into allegations of enlistment fraud.  The applicant was interviewed in the presence of his counsel.  His service records revealed he had listed his place of birth as the Canal Zone, Panama, and his mother's address as Panama City, Panama.  His selective service records show he listed his place of birth as Colon, Panama.  He also had a common law wife and two children residing in Panama.  He entered the United States at Baltimore on a tourist visa in June 1971 and his visa expired in September 1971.  

5.  On 7 May 1973, also while still in training at Fort Dix, NJ, he again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order. 

6.  On 21 May 1973, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to fraudulent enlistment. 

7.  On 22 May 1973, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.  He indicated he understood he could expect to encounter substantial prejudice in civilian life and as a result of the issuance of a discharge under other than honorable conditions and he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He also submitted a statement wherein he indicated: 

* he came to the United States and volunteered his service for military duty
* he did use a different place of birth because of his alien status; he did so because he was advised to do so by the recruiter
* he is now a United States citizen 
* he was put under undue pressure during the investigation 
* he felt he had potential to be a good Soldier and making the Army a career

8.  On 24 May 1973, his immediate commander initiated separation action against him for a fraudulent enlistment/induction.  The commander recommended a general discharge.  His intermediate commander recommended approval. 

9.  On 26 June 1973, the separation authority approved the discharge action and ordered the applicant be discharged in accordance with chapter 14 of Army Regulation 635-200 and the issuance of a General Discharge Certificate.  Accordingly, he was discharged on 6 July 1973. 

10.  His DD Form 214 shows he was discharge on 6 July 1973 for misconduct-fraudulent entry, under the provisions of Army Regulation 635-200, chapter 14 with an under honorable conditions characterization of service.  He completed 
9 months and 29 days of active service and he had 10 days of lost time. 

11.  On 6 April 1976, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  The ADRB denied his petition for an upgrade of his discharge. 

12.  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.

13.  Army Regulation 635-200, 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 shows that upon his enlistment in the Regular Army the applicant disclosed fraudulent information about his place of birth.  Accordingly, his chain of command initiated action to eliminate him from the Army.  He was ultimately discharged on 6 July 1973.

2.  His administrative separation 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 reasons were appropriate considering all the facts of the case.  

3.  Given his three instances of AWOL, two instances of NJP, and fraudulent enlistment, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20140010086



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