IN THE CASE OF:
BOARD DATE: 26 March 2015
DOCKET NUMBER: AR20140014175
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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show additional service and that he was discharged for medical reasons.
2. The applicant states, in effect, his DD Form 214 does not reflect all of his service and it incorrectly shows he was discharged for fraudulent enlistment. He continues by stating that he was legally recruited into the Army and fractured both of his legs and he was placed in a hold-over status for 6 months. He further states that he was discharged for medical reasons and the DD Form 214 that is contained in his records is not the one he initially received.
3. The applicant provides a copy of his DD Form 214.
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) in the pay grade of E-4 on 4 October 1990 for a period of 5 years, training as a personnel administrative specialist, and assignment to Europe. He was transferred to Fort Knox, Kentucky to undergo basic training.
3. On 5 November 1990, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 11 to 30 October 1990; he surrendered to military authorities in Sacramento, California.
4. On 5 November 1990, the applicants commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 7-17B, due to fraudulent enlistment. The bases cited for the recommendation was the applicant's concealment of driving under the influence and writing bad checks prior to enlistment.
5. On 6 November 1990, after refusing to consult with defense counsel, the applicant waived his rights and submitted a sworn statement in which he stated that due to the fact that his record was now known, he agreed with the proposed discharge. The applicant also declined a separation physical/medical examination.
6. On 26 November 1990, the appropriate authority approved the recommendation for discharge and directed that his service be uncharacterized.
7. Accordingly, on 29 November 1990, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 7-17B, due to fraudulent entry. He had served 1 month and 8 days of active service and he had 20 days of lost time due to being AWOL.
8. A review of the applicant's official records failed to reveal any evidence that he served in an active duty status beyond his discharge date. Additionally, there is no evidence that he was processed for a separation due to medical reasons.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his DD from 214 incorrectly shows he was improperly discharged for fraudulent entry has been noted and appears to lack merit.
2. The evidence of record clearly shows that he enlisted in the RA on 4 October 1990 and he was discharged for fraudulent entry on 29 November 1990.
3. Therefore, since the applicant has submitted no evidence to support his contentions or to dispute the evidence of record, there appears to be no basis for granting his 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) AR20140014175
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ABCMR Record of Proceedings (cont) AR20140014175
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