IN THE CASE OF:	

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20150000736 


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 correction of his DD Form 214 (Report of Separation from Active Duty) as follows: 

* Item 9a (Type of Separation), from “Release from Military Control” to Discharged
* Item 9c (Authority and Reason), from paragraph 14-15a, Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel) and Separation Program Designator (SPD) YKG, should be deleted
* Item 9e (Character of Service) from “Not Applicable” to Honorable 

2.  The applicant states when he enlisted in the Army, he took an oath to defend our country and he never deviated from that decision.  During his enlistment, he explained to the recruiter about his juvenile record but the recruiter told him it would not affect his choice for military occupational specialty (MOS) 95B (Military Police (MP)) when obtaining a security clearance.  It did.  When he completed MP school, he was told he could not get a clearance as an MP.  Now, 35 years later, medical issues have arisen that bring him to the Department of Veterans Affairs for medical assistance.  He believes an amendment to the DD Form 214 is warranted. 

3.  The applicant provides Congressional correspondence, DD Form 214, separation orders, and DD Form 1966/4 (Record of Military Processing).



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 records show he enlisted in the Regular Army on 27 October 1978.  He enlisted for training in MOS 95B and assignment to the Military District of Washington. 

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 discharge from the military service with other than honorable discharge. 

4.  He answered in the positive to the questions 40(a) and 40(b) and in the negative to questions 40(c) and 40(d):

	a.  40(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.  40(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.  40(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.  40(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.  He was subsequently reassigned to Fort McClellan, AL, for training.  He was assigned to Company A, 12th MP Battalion (One-Station Unit Training). 

6.  On 10 January 1979, the 12th MP Battalion's Adjutant indicated that upon his enlistment, the applicant indicated on official documents that he had not been charged, cited or held by federal, state, or juvenile authorities.  After his arrival to the unit, the applicant stated he had been in fact arrested for sexual abuse of the first degree.  His record should be verified and final decision into the disposition of his case is requested. 

7.  On 11 January 1979, the applicant consented to the release of a certified report of correct status and disposition of his police record and/or case prosecution. 

8.  On 23 January 1979, the applicant's immediate commander notified the applicant that discharge proceedings were initiated against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct-fraudulent enlistment.  He advised the applicant of his rights.  

9.  On 25 January 1979, the applicant acknowledged receipt of the notification of separation action.  He indicated that at the time of his enlistment, the recruiter was not aware of the circumstances which were now the basis for this action.  He also acknowledged he was advised of the basis of the contemplated action to discharge him.  He elected not to submit a statement on his own behalf.   He acknowledged that he understood he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life. 

10.  On 25 January 1979, the applicant's commander initiated separation action against him by reason of misconduct-fraudulent enlistment.  His intermediate and senior commanders recommended approval of the separation and that his contract be voided.


11.  On 12 February 1979, the separation authority ordered the applicant's enlistment voided in accordance with chapter 14 of Army Regulation 635-200 and the applicant's release from military control by reason of fraudulent enlistment.  

12.  His DD Form 214 shows he was released from the custody and control of the Army on 16 February 1979 for misconduct-fraudulent entry, under the provisions of Army Regulation 635-200, chapter 14.  His DD Form 214 also shows in:

* Item 9a - Release from Military Control
* Item 9c - Paragraph 14-5a, AR 635-200, SPD YKG
* Item 9e - Not Applicable
* Item 12c (Net Active Service This Period) the entry "00-00-00"

13.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-years statute of limitations. 

14.  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.

	a.  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.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

15.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  Characterization or description of service is determined by directives authorizing separation.  The version of the regulation in effect at the time stated that for a Soldier being released from the custody and control of the Army due to a fraudulent void enlistment, "NA" would be entered on the DD Form 214 in the item for character of service.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation in effect at the time showed that SPD "YKG" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Fraudulent Entry" and the authority for discharge under this SPD was "chapter 14 of Army Regulation 635-200."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to his enlistment the applicant was arrested and/or convicted by civil court for sexual abuse of the first degree.  However, he failed to disclose this information upon his enlistment.  He claimed his recruiter told him to do so but does not provide substantiating evidence, such as a finding of recruiter impropriety or investigation, to corroborate his contention. In any case, he still lied on his enlistment papers.  Accordingly, his chain of command initiated action to void his enlistment contract.  He was ultimately released from the custody of the Army by reason of fraudulent entry.  

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.  He was assigned the proper separation code and authority for separation.  The appropriate character of service associated with this type of discharge at the time was "NA" which is correctly shown on his DD Form 214. 

3.  He was released from military control by reason of his fraudulent entry.  Absent this fraud, there was no fundamental reason to void his enlistment and release him.  The underlying reason for his release was his fraud.  The only narrative reason for separation appropriate here is misconduct-fraudulent enlistment and the corresponding SPD Code is YKG.

4.  Time spent in an enlistment which is determined to be fraudulent and is terminated for this reason is not creditable service and cannot be characterized.  In view of the foregoing evidence, his is not entitled to 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)                                         AR20150000736



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ABCMR Record of Proceedings (cont)                                         AR20150000736



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