IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140014348 


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.

2.  The applicant states he had no control over the specifics of his situation.

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) and a statement. 

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 30 December 1975.

3.  He completed and/or answered many questions on the DD Form 1966 (Application for Enlistment - Armed Forces of the United States).  Specifically, item 40 (Involvement with Police or Judicial Authorities) of his DD Form 1966 states:

Your answers to the following questions will be verified with the Federal Bureau of Investigation and other agencies to determine any previous records of arrests, convictions or juvenile court adjudications.  If you conceal such records at this time, you may, upon enlistment, be subject to disciplinary actions under the provisions of the Uniform Code of Military Justice and/or discharged from the military service with an other than honorable discharge. 

4.  He answered "NO" to the following questions:

	a.  Have you ever been arrested, charged, cited or held by Federal, State or other law enforcement or juvenile authorities regardless of whether the citation or charge was dropped or dismissed or you were found not guilty? 

	b.  As a result of being arrested, charged, cited, or held by law enforcement or juvenile authorities, have you been convicted, fined by or forfeited bond to a Federal, State or other judicial authority or adjudicated a youthful offender or juvenile delinquent (regardless of whether the record in your case has been sealed or otherwise stricken from the court record)?

	c.  Have you ever been detained, held in, or served time in, any jail or prison, or reform or industrial school or any juvenile facility or institution under the jurisdiction of any City, County, Federal, or foreign country?

	d.  Have you ever been awarded, or are you now under suspended sentence, parole, or probation or awaiting any action on charges against you? 

5.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on:

* 19 January 1976, for absenting himself from his unit, without authority, for the period 0630 hours to 1930 hours on 12 January 1976 
* 27 February 1976, for being disrespectful toward a noncommissioned officer by raising his weapon on 19 February 1976 

6.  His record contains a letter from the Department of Youth Authority, San Jose, CA, to the Commander, U.S. Army Training Center, Fort Leonard Wood, MO, dated 12 March 1976.  The letter states the applicant was discharged from parole on 11 March 1976.

7.  On 18 March 1976, 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.  His commander noted the applicant was constantly creating problems and being insubordinate toward his chain of command.

8.  On 19 March 1976, 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 and the type of discharge he could receive.  In the event an undesirable discharge was recommended he requested consideration of his case by a board of officers and a personal appearance before a board of officers.  He acknowledged he understood as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement on his own behalf.

9.  On 1 April 1976, the separation authority approved the discharge action and ordered the applicant would be discharged in accordance with chapter 14 of Army Regulation 635-200 with the issuance of a General Discharge Certificate.  Accordingly, he was discharged on 9 April 1976.

10.  His DD Form 214 shows, on 9 April 1976, he was discharged under the provisions of chapter 14, Army Regulation 635-200, for misconduct-fraudulent entry, with an under honorable conditions characterization of service.  He completed 3 months and 10 days of active service with no lost time. 

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  The applicant provides a statement, dated 5 August 2014, in which he indicates, in effect:

   a.  When he was age 19, he was in a parole status under the California Youth Authority.  He went to see an Army recruiter about joining the military.  At the time, his recruiter was aware he was on parole.  All of the documents were completed and he was successful in joining the Army based on the recruiter's assurance that everything would be alright.

   b.  When he arrived at Fort Leonard Wood, MO, he was confronted by a noncommissioned officer in his company who stated that it had come to his attention that his enlistment was fraudulent because he had not told anyone that he was on parole when he entered the service.
   c.  He was under the impression that since his recruiter was aware of the fact that he was on parole, all of the proper channels of communication had been used to relay the information.  Early in basic training, he received a letter in the mail from the State of California stating that he was released from parole.  As it sometimes goes in basic training, his mail was not private and that is when the noncommissioned officer received the information.  The noncommissioned officer subsequently told him his enlistment was fraudulent and he was discharged.

   d.  He wanted to serve a complete term in the Army.  The crime that he committed which caused him to be placed on parole was burglary and he was a minor at the time.  It was his understanding that when he turned 37 years of age, the crime would be cleared from his record.  He is in a place in life where he has learned from the mistakes of the past and the blemish on his military record is something he has always regretted.  

   e.  He wants to leave a good impression on his children and have them know that he served honorably and had the desire to do so even longer than his brief time in the Army.  He understands that certain offenses cannot be waived; however, he feels he was misled by his recruiter otherwise he would not have attempted to enlist in the military.

13.  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.

14.  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 disclosure of information about the applicant's parole status.  His chain of command initiated action to eliminate him from the Army.  He was ultimately discharged on 9 April 1976.

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 two instances of NJP during his 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)                                         AR20140014348



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ABCMR Record of Proceedings (cont)                                         AR20140014348



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