IN THE CASE OF:	  

		BOARD DATE:	 3 March 2015 

		DOCKET NUMBER:  AR20140012755 


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, in effect, his general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect:

* he erroneously received a general under honorable conditions discharge
* his commander initiated separation action based upon fraudulent enlistment, citing a civilian court indictment that had actually been dismissed
* the error occurred as a result of the civilian court's delay in processing the dismissal of charges
* he is currently unable to access court records to prove the charges were dismissed, but the records should be available at the court
* he requests a copy of his discharge certificate

3.  The applicant provides no additional documentary 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 requests a copy of his discharge certificate.  The Board is not the custodian of military personnel records and is unable to fulfill his request.  He is advised his request for a copy of his discharge certificate, or any part of his military service records, should be addressed to the National Personnel Records Center, 1 Archives Drive, St. Louis, MO 63138.  No further reference will be made to the applicant's request for a copy of his discharge certificate or military records.

3.  The applicant enlisted in the Regular Army on 21 September 1976.  He was attending initial entry training when his background check revealed prior civilian arrests he had not reported.

4.  His record contains a DD Form 1966 (Application for Enlistment - Armed Forces of the United States).  In item 40 (Involvement with Police or Judicial Authorities) the applicant reported he had been arrested, charged, cited, or held by Federal, State, or other law enforcement  or juvenile authorities.  He also reported he had been convicted, fined by, or forfeited bond to a Federal, State, or other judicial authority.  He answered "No" to the question of whether he had ever been detained, held in, or served time in any jail or prison.  He also answered "No" regarding ever being awarded or now under suspended sentence, parole, or probation, or awaiting action on charges.

5.  In items 40g (Explain "Yes" answers in "a" through "e") and 41 (Remarks), the applicant detailed prior arrests, noting the following:

* speeding on 16 February 1976 in Los Angeles, CA, at age 19 - paid $10.00
* parking on 10 April 1976 in Los Angeles at age 19 - paid $5.00
* trespassing in 1970 in Los Angeles at age 15 - counseled and released
* questioned about grand theft - not charged

6.  In Part V (Certification) of his DD Form 1966/5, item 42 states, “I understand that the Armed Forces representative who will accept my enlistment does so in reliance on the information provided by me in this document; that if any of the information is knowingly false or incorrect, I may be prosecuted under Federal, civilian or military law or subject to administrative separation . . . I may receive a less than honorable discharge which would affect my further employment opportunities.”  The applicant affixed his signature to the form. 

7.  His record also contains a DA Form 2496 (Disposition Form), dated 15 December 1976, prepared by the Acting Director of Security, U.S. Army Signal School, Fort Gordon, GA.  In this form it is reported the applicant's Entrance National Agency Check (ENTNAC) revealed the following items, none of which were listed on the applicant's DD Form 1966:

* arrested by the Sheriff's Office, Los Angeles, CA on 18 January 1976; charged with burglary
* arrested by the Sheriff's Office on 18 June 1976, charged with drunk driving
* arrested by the Sheriff's Office on 28 July 1976; charged with burglary

8.  On 31 January 1977, the applicant's commander notified him he would be recommending the applicant for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 
paragraph 5-38 (Concealment of Arrest Record).  That same date the applicant consulted with counsel, acknowledged notification, and declined to submit any statements in his own behalf. 

9.  On 18 February 1977, the separation approval authority approved the commander's request to eliminate the applicant and directed the applicant receive a general discharge under honorable conditions.  On 28 February 1977, the applicant was discharged accordingly. 

10.  His DD Form 214 shows:

* authority and reason for discharge is paragraph 5-38, Army Regulation 635-200
* character of service is under honorable conditions
* 5 months and 10 days total creditable active service

11.  Army Regulation 635-200 prescribes policy and procedures for enlisted separations.  It states, in pertinent part, enlisted personnel who conceal an arrest record which did not result in civil court conviction at the time of enlistment may be discharged.  The following is considered:

	a.  The arrest concealed must be for a felony offense.  Army Regulation 601-270 (Personnel Procurement - Armed Forces Examining and Entrance Stations) contains a partial listing of felony offenses.

	b.  A pattern of arrests is suggestive of undesirable character traits.  The pattern may include misdemeanors and lesser offenses in addition to a felony.

	c.  The age of the individual when arrested and the period of time which has elapsed since the arrests.

	d.  The pre-service background of the individual.

12.  Army Regulation 601-270, in effect at the time, provides a partial listing of felonies.  Included on this list is burglary. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was erroneously discharged for fraudulent enlistment.  The basis for his contention is that civilian charges had actually been dismissed prior to his enlistment; the court was simply delayed in recording that result.

2.  His discharge was not based upon the disposition of civilian charges.  Rather, the issue was that the applicant did not report on his DD Form 1966 the three arrests identified in his ENTNAC.  When he authenticated his enlistment application, he stated that he had provided all required information to include his complete civilian arrest history.  He also acknowledged that if he provided false information he could be tried under law or administratively separated with a less than honorable discharge. 

3.  The Board starts a review of each application with the presumption of administrative regularity.  The Board and its staff are not investigators or research analysts.  Each applicant is required to provide sufficient evidence to support their application.  The applicant provided no evidence as to why the arrests identified in his ENTNAC might have been erroneously recorded.  He also offers no documentary evidence he had reported these civilian arrests to military authorities prior to his enlistment.  Therefore, his discharge for concealing arrests is appropriate and in accordance with Army regulations.  

4.  Based upon the foregoing, there is insufficient evidence to support 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 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)                                         AR20140012755



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140012755



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1