IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140017771 


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, an upgrade of his discharge to show he received an honorable characterization of service.

2.  The applicant states he is and has always been a patriotic American.  His service was honorable.  He never received a letter of reprimand, nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), or a court-marital.

	a.  He takes full responsibility for the actions that led to his dishonorable [sic, release from custody and control of the Army] discharge from the U.S. Army in 1982.  He was young and naïve and did not understand the full implications of his actions.  However, he never hurt another person and only tried to serve his country and make his father and brother, who both served in the military, proud.

	b.  In the process of serving his country, he injured his knee.  His knee has not been the same since the injury.  After his discharge, he worked at the State of Florida as a clerk specialist and later as a carpenter.  He would like to have his discharge upgraded because he has made every effort to be an honorable and patriotic citizen and he loves his country.  

3.  The applicant provides:

* self-authored statement, dated 13 June 2014
* two letters of commendation, dated 3 June 1982 and 22 July 1982
* medical sufficiency statement, dated 24 February 2006
* two letters of support, dated 16 June 2014 and one undated

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 record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he enlisted in the U.S. Air Force on      26 December 1978 and was honorably discharged by reason of an involuntary discharge – erroneous entry on 11 April 1980.

3.  He enlisted in the Regular Army on 30 June 1981.  He was 21 years old at the time of his enlistment.  During the process of his enlistment he completed a     DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 30 June 1981, wherein he stated in two different sections of this form that he was not at the time nor had he ever been in any Regular or Reserve branch of the Armed Forces or in the Army or Air National Guard. 

4.  His record contains a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 19 March 1982, which shows a Criminal Investigation Command (CID) Special Agent wanted to question him about two offenses of which he had been accused: communicating a threat and fraudulent enlistment.  

5.  His record contains a DA Form 2823 (Sworn Statement), dated 19 April 1982, wherein he stated, in effect:

	a.  He sent a threatening letter to the home of a female, wherein he mentioned his M16A1 rifle.  He sent this letter because her boyfriend had previously sent the applicant a letter in which the boyfriend stated, "I'd like to meet you sometime so I can introduce you to my fist."  The applicant stated he had no intention of using the weapon, he just mentioned it as a threat.  He also stated he had previously served in the Air Force and was discharged for medical reasons (mental).  He stated he never mentioned his previous enlistment to the Army recruiter because he wanted to go through Army basic training.

6.  On 17 August 1982, the applicant's immediate commander notified the applicant that he had recommended him for separation from the Army under the Provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 for misconduct due to fraudulent entry.  His commander informed him of his rights and the applicant acknowledged receipt of the notification that same day.  He also consulted with counsel on the basis of his proposed separation and was informed of his rights.

7.  On 15 September 1982, the court-martial convening authority directed the issuance of orders releasing him from control of the Army because of fraudulent enlistment under the provisions of Army Regulation 635-200, paragraph 14-5a.

8.  His DD Form 214 shows he was released from custody and control of the Army on 1 October 1982.  This form also shows in:

* in item 9 (Command to Which Transferred), the entry "NA"
* in item 12c (Net Active Service This Period), the entry "00 00 00"
* in item 18 (Remarks), the entry "Time served is not creditable for promotion or longevity"
* in item 23 (Type of Separation), the entry "Release from Custody and Control of the Army"
* in item 24 (Character of Service), the entry "NA"

9.  There is no indication that he applied to the Army Discharge Review Board to request and upgrade of his characterization of service within that board's 15-year statute of limitations.  

10.  The applicant provided one letter of appreciation; two letters attesting to his good character; and one letter, issued by the 347th Medical Group, Moody Air Force Base, GA on 24 February 2006, wherein the commander of the medical unit stated that after reviewing the applicant's medical information he affirmed with medical sufficiency that the applicant is incapable of self-support because of a mental incapacity that has existed on a continuous basis since before his 21st birthday and will not be resolved in the foreseeable future.  

11.  Army Regulation 635-200, chapter 14 states fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all conditions that would have been disqualifying without a waiver.  However, the enlistment of a minor with false representation as to age without proper consent will not in itself be considered as fraudulent enlistment.  

	a.  The following two tests must be applied in each case of suspected fraudulent enlistment or reenlistment to establish that the enlistment or reenlistment was, in fact, fraudulent; first test - commanders must determine if the information is in fact disqualifying; and second test - commanders must verify the existence and true nature of the apparently disqualifying information.  

 	b.  Any incident which meets the foregoing two tests may be cause for separation for fraudulent entry.  One example of fraudulent entry is concealment of prior service. 
 
 	c.  When court-martial charges are not pending or contemplated, commanders exercising general court-martial jurisdiction may void the fraudulent entry by issuing orders releasing the member from Army control for fraudulent entry.  
 
	d.  A DD Form 214 will be prepared and distributed in accordance with Army Regulation 635-5 to all individuals released from custody and control due to voided service.  

12.  Army Regulation 635-5 (Separation Documents) paragraph 2-7 states, when members are released from custody and control of the Army because of a void or voided enlistment, the following instructions apply to the entries on the DD Form 214:

* in item 9 (Command to Which Transferred), enter "NA"
* in item 12c (Net Active Service This Period), enter a zero in the year, month, and day blocks
* in item 18 (Remarks), enter "Time served is not creditable for promotion or longevity"
* in item 23 (Type of Separation), enter "Release from Custody and Control of the Army"
* in item 24 (Character of Service), enter "NA"

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not receive a dishonorable discharge.  His service for the period covered by his Army DD Form 214 was completely voided due to his fraudulent entry.  Therefore, he did not receive any characterization of service.
2.  The evidence of record shows that his chain of command took the appropriate action and determined the applicant had fraudulently enlisted.  It was determined he purposely concealed his previous enlistment in the Air Force thus voiding his Army service.  With a voided service record due to fraudulent enlistment, no character of service can be established.  

3.  Furthermore, his record does not contain any evidence to indicate that an error or any injustice occurred as a result of his release from custody and control of the Army.  Based on the foregoing, there is insufficient evidence to grant 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)                                         AR20140017771



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017771



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1