IN THE CASE OF: 

		BOARD DATE: 30 July 2015

		DOCKET NUMBER:  AR20140021424 


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 the characterization of his discharge be changed from unknown to general or honorable.

2.  The applicant states he did not intentionally omit information about his juvenile record when he enlisted.  The recruiter filled out his enlistment contact.

3.  The applicant did not provide any supporting documentation.

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 on 25 April 1978.  

3.  A DD Form 1966 (Application for Enlistment - Armed Forces of the United States) completed in conjunction with his enlistment shows in:

	a.  Item 40 (Involvement with Police or Judicial Authorities):

		(1)  Item 40a (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.)  The "Yes" block is checked. 

		(2)  Item 40b (As a result of being arrested, charged, cited, or held by law enforcement or juvenile authorities, have you ever 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?))  The "Yes: block is checked.

		(3)  Item 40c (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, State, or Federal or Foreign country?) The "No" block is checked.

		(4)  Item 40d (Have you ever been awarded, or are you now under suspended sentence, parole, or probation or awaiting any action on charges against you?)  The "No" block is checked.

		(5) Item 40g (Explain below "Yes" answers in "a" through "g".  Be careful to include all incidents with law enforcement authorities that you discussed with your recruiter.)  The applicant listed two offenses of "No Driver's License" in 1977 in Dallas, Texas.  He stated, “I have no other law violations.”

	b.  Part VI (Parental/Guardian Consent for Enlistment) shows two signatures which appear to be for his mother and father.  The recruiter and applicant signed the form.

4.  A DD Form 398 (Statement of Personal History), completed on 8 February 1979, shows in item 18 (Have you ever been detained, held, etc.)  The "Yes" block is checked.  He entered the following:

* September 1968, possession of a deadly weapon – probation Huntsville, AL
* July 1970, burglary of an automobile – probation Dallas, TX
* March 1974, burglary of a business – State School, Dallas, TX
* June 1974, runaway from State School and returned – Dallas, TX

5.  His record shows he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 17 July 1979, for being absent from his appointed place of duty on 11 July 1979
* 14 August 1979, for being absent from his appointed place of duty on 7 August 1979

6.  On 11 June 1979, the applicant was notified by the U. S. Army Central Personnel Security Clearance Facility, Fort Meade, MD of their intent to revoke his security clearance.  The action was contemplated because of his excessive record of arrests and convictions and that he failed to list all of his arrests on his enlistment documents DD Form 1966 and DD Form 398. 

7.  In a 16 July 1966 letter addressed through his brigade commander to the Central Personnel Security Clearance Facility, the applicant revealed he had received the 11 June 1979 letter and found it to be true and correct.  He also stated he did not list all his arrests or convictions on the DD Form 1966 because all of his convictions were as a juvenile and he assumed those were not required to be listed on the form.

8.  On 18 July 1979, the applicant's immediate commander notified the applicant of his intent to initiate separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 for concealment of his record as a juvenile offender.

9.  On 24 September 1979, the applicant requested counsel.  He was informed that he was being considered for separation based on his fraudulent entry and that his enlistment might be voided under certain circumstances.  He waived his right to consideration by a board of officers.  He was advised by counsel that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions or a discharge under other than honorable conditions was issued.  He was advised he would be ineligible for many or all benefits as a veteran under both Federal and State laws.  He indicated he would not submit a statement on his own behalf.

10.  On 1 October 1979, consistent with the chain of command's recommendations, the separation authority approved the discharge action and ordered the applicant discharged in accordance with chapter 14, Army Regulation 635-200 with issuance of a General Discharge Certificate.

11.  The applicant was accordingly discharged on 22 October 1979.  His DD Form 214 (Report of Separation from Active Duty) shows in:

	a.  Item 18 (Remarks) “Record of service 01 year, 05 months, 27 days served during this period of voided service is not creditable for promotion or longevity."

   b.  Item 23 (Type of Separation) "Relief from custody and control of the Army"

	c.  Item 24 (Character of Service) "Not applicable"

	d.  Item 25 (Separation Authority) "Chap 14 Section II AR 635-200"

	e.  Item 28 (Narrative Reason for Separation) "Misconduct – Fraudulent Enlistment"

12.  Army Regulation 635-200, in effect at that time, set forth the authority for the separation of enlisted personnel for misconduct, including fraudulent entry.  
Paragraph 14-1 establishes policy and prescribes procedures for the processing of fraudulent entry cases and provides for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the service.  

	a.  Paragraph 14-5 d.  Concealment of record as a juvenile offender.

		(1) An individual who concealed his adjudication as a juvenile offender for a felonious offense will normally not be considered for retention.

		(2) The evidence must clearly show that the individual gave a negative answer to a specific question as to whether he had a record of being a juvenile offender, or denied that civil custody, as a result of such record, existed at the time of entry into the service.

	b.  Paragraph 14-19 (Type of Discharge) states that an individual discharged under the provisions of this chapter will be furnished DD Form 256A (Honorable Discharge Certificate), DD Form 257A (General Discharge Certificate), or DD Form 258A (Undesirable Discharge Certificate).  Paragraph 14-20 (Entries on DD Form 214) states when an individual is discharged for fraudulent entry, the entry on DD Form 214 will be "Chapter 14, AR 635-200." 

13.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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 applicant’s request to correct his record to show a general or honorable characterization of service has merit.  The evidence of record shows the applicant had a significant record of juvenile offenses that he failed to disclose upon his enlistment in the Regular Army.  Accordingly, his chain of command initiated action to discharge him from the service for fraudulent enlistment.  The applicant was advised of his rights and waived them.  The separation authority directed issuance of a General Discharge Certificate.  

2.  It appears an administrative error occurred in the preparation of his DD Form 214 for it shows his discharge characterization as "Not applicable"; therefore, based on the separation authority’s decision rendered in 1979 the applicant’s DD Form 214 should be corrected accordingly.

3.  Notwithstanding the falsification of official Government documents, the applicant’s overall service record of indiscipline included two instances of NJP.  Therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he should not receive an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x_____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the entry "NOT APPLICABLE" in item 24 of his DD Form 214 and replacing it with "GENERAL, UNDER HONORABLE CONDITIONS". 


2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to honorable. 



      ____________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)                                         AR20130019195



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ABCMR Record of Proceedings (cont)                                         AR20140021424



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