IN THE CASE OF:  	  

		BOARD DATE:  16 June 2015	  

		DOCKET NUMBER:  AR20140018564 


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 to an honorable or a medical discharge.

2.  The applicant states he should have received a medical discharge.

3.  The applicant provides seven character letters.

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 the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the in the U.S. Army Reserve Delayed Entry Program on 7 August 1981.

3.  His records contain a DD Form 1966/5 (Enlistment Contract – Armed Forces of the United States) that shows in item 36 (Involvement with Police of Judicial Authorities):

   a.  He placed his initials in the block indicating he had been arrested, charged, citied, or held by law-enforcement.  

   b.  He also placed his initials in each "No" block indicating he had not been arrested, charged, cited, or held by law enforcement; convicted, fined, or forfeited bond; released from parole, probation, or given a suspended sentence, or relieved of charges pending on the condition that he apply for or enlist in the U.S. Army; or that he was currently involved or connected with any court action.  

4.  He enlisted in the Regular Army, in pay grade E-1, on 10 November 1981, for 3 years.  At the time of his enlistment he was age 21.  He was trained in and awarded military occupational specialty (MOS) 75B (personnel administration specialist).  He was advanced to pay grade E-2 on 1 June 1982.

5.  He was reported absent without leave from 15 to 18 June 1982.

6.  A discharge order, dated 5 August 1982, shows he was sentenced by the State of Georgia Superior Court, on 3 October 1977, to 3 years' probation and a $300 fine.  At the time of his sentencing he was age 17.  On 5 August 1982, he had successfully fulfilled the terms of probation and was discharged on this date without court adjudication of guilt.   

7.  On 6 December 1982, applicant's company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 7-17, for fraudulent entry, because of the applicant's failure to reveal his civil conviction.  The applicant was advised of his rights.

8.  On 16 December 1982, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action, it effects, and the rights available to him.  He also acknowledged he could receive a general or under other than honorable conditions discharge and the results of the issuance either discharge.  He waived his rights and elected to submit a statement in his own behalf. 

9.  In his statement, the applicant indicated:

   a.  He joined the Army on 11 November 1981.  A situation had arisen which could decide the outcome of his military career.  He had been informed by his company commander that documentation had been received in reference to his enlistment.  The documentation stated that he fraudulently enlisted by not revealing the fact that he had a civil conviction prior to enlisting in the Army.  This was not true, he informed his recruiter about his civil conviction, but the recruiter told him not to worry about it since it occurred when he was age 17, a minor.

   b.  He felt that he had completed basic and advanced individual training and it would be a waste of the Government's time and money to discharge him.  During his short career he had worked in his MOS to the best of his ability and would like to continue serving his country.  He would like to make the Army a career.  Recently, his family had moved to Columbus, GA.  He was just getting himself situated there and it would be a financial and emotional burden on him and his family.

   c.  His superiors could appeal on his behalf.  He had always supported the decisions of his superiors and officers appointed over him.  He just wanted a chance to prove that he was a good Soldier and continue serving his country.  He had been doing a good job.  He had come a long way in a short time.  He was requesting the final approval/disapproval authority to take into consideration the extenuating circumstances and grant him the opportunity to be retained on active duty.

10.  In a statement, undated, the Personnel Action Center Supervisor stated the applicant was assigned to that battalion on 7 April 1982 and he performed his assigned duties in an excellent manner.  The applicant was performing the duties normally occupied by a sergeant, pay grade E-5, and he was accomplishing that task with minimum supervision.  As to the applicant's fraudulent enlistment, he felt the applicant should be retained on active duty.  The applicant made a mistake in his younger life and had paid for it in full as indicated on the report of investigation, which also showed that for the 3-year period he was on probation he reported satisfactorily to his probation officer.  The applicant stated, in the company of his wife, informed the recruiter of his civil conviction; but he was told not to say anything about it.  The applicant was a good Soldier and would be an asset to the U.S. Army.

11.  On 16 December 1982, the applicant's battalion commander recommended approval of the applicant's discharge.  The applicant had performed satisfactorily as a member of that command since 7 April 1982; however, this did not constitute exoneration.

12.  On 21 December 1982, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

13.  Accordingly, he was discharged in pay grade E-2 on 12 January 1983.  He was credited with completing 1 year and 2 months of net active service and he had lost time from 15 through 17 June 1982.  His service was characterized as under honorable conditions (general).

14.  There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

15.  He provided seven character reference letters wherein the individuals attested to the applicant desperately needing help with housing and an upgrade of his discharge to a medical or honorable.  The applicant was suffering from numerous physical and mental conditions.  The applicant had been attending substance abuse treatment since 4 June 2014.  

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 7-17b – a member who concealed his or her conviction by civil court of a felonious offense normally would not be considered for retention.  If the fraudulent entry was verified, the separation authority would take action to direct discharge and issue an honorable, a general, or discharge under other than honorable conditions as was determined to be appropriate.

   b.  Paragraph 3-7a – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating.  It provided for medical evaluation boards (MEB) which were convened to document a Soldier's medical status and duty limitations insofar as duty was affected by the Soldier's status.  A decision was made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the MEB determined the Soldier did not meet retention standards, the board would recommend referral of the Soldier to a physical evaluation board.

18.  Army Regulation 40-501, chapter 3, in effect at the time, provided that, for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating.  Members with conditions, as listed in that chapter, were considered medically unfit for retention on active duty and were referred for disability processing.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record contains documentation which shows he knowingly and willfully omitted his civil conviction and probation prior to entry on active duty. Upon receipt of information the applicant had successfully completed the terms of his probation, the applicant's company commander initiated action to discharge him for fraudulent enlistment based on that concealment.  The separation authority approved his discharge and he was discharged accordingly on 12 January 1983.

2.  He did not provide sufficient evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge or the change of his reason for discharge.  There is also no evidence and he provided none showing he was medically unfit (in accordance with the standards of Army Regulation 
40-501) at the time.  The evidence shows his prior misconduct conduct and apparent omission of material fact on official Government documents diminished the quality of his service below that meriting a fully honorable discharge.

3.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is insufficient evidence to support granting him 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)                                         AR20140018564



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ABCMR Record of Proceedings (cont)                                         AR20140018564



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