IN THE CASE OF:
BOARD DATE: 1 October 2015
DOCKET NUMBER: AR20150003480
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 that his DD Form 214 (Report of Separation from Active Duty) be corrected to show a characterization of service.
2. The applicant states although he was divorced his recruiter told him to state that he was still married. He needs his DD Form 214 corrected to apply for health insurance benefits.
3. The applicant provides a copy of his DD Form 214.
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. On 26 November 1976, the applicant was divorced and his ex-wife received full custody of their three children. No child support was included in the divorce decree, although the court retained the right to set specific monetary amounts should adequate support for the children not be forthcoming.
3. The applicant enlisted in the U.S. Army Reserve under the Delayed Entry Program (DEP) on 11 July 1977. He indicated on his enlistment documents that he was married with two children. He entered active duty in the Regular Army on 22 July 1977, completed training, and was assigned to Germany.
4. Upon assignment to the 4th Battalion, 6th Infantry Regiment, Berlin Brigade, he was asked to clarify his marital and dependency status. It was determined that he had given false information as to his marital and dependency status at the time of enlistment.
5. On 27 January 1978, his unit commander initiated action to void the applicant's service under Army Regulation 635-200, chapter 14 for fraudulent enlistment.
6. On 15 February 1978, the applicant acknowledged the separation action and requested voidance of his enlistment contract and release from active duty.
7. The discharge authority directed that the applicant's enlistment be voided and he was released from active duty effective 6 March 1978.
8. His DD Form 214 shows
* authority and reason Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Paragraph 14-4d
* Separation Program Designator Code YKG
* character of separation NA
* no discharge certificate was issued
* a reenlistment eligibility code of RE-3
* no creditable active duty service time
* 11 days of inactive service
* fraudulent entry
9. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include fraudulent enlistment.
a. Paragraph 14-4(d) stated that the commander exercising general court-martial jurisdiction will void the fraudulent entry by issuing orders releasing the member from Army control for fraudulent entry. The regulation also states that commanders are authorized to void fraudulent enlistments or reenlistments when it has been determined that the fraud was aided by a recruiting official. If such action by a recruiting official is verified, voidance is mandatory.
b. Fraudulent entry is defined as the procurement of an enlistment, re-enlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or re-enlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver.
c. Included in the provisions for fraudulent entry is misrepresentation with regard to legal marital status and/or custody of children.
d. The following types of characterization of service or description of separation are authorized:
(1) Separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions.
(2) Entry-level status. Service will be uncharacterized if initiated within the first 180 days of service.
(3) Order of release from the custody and control of the Army by reason of voided enlistment or induction.
(4) Separation by being dropped from the rolls of the Army.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant was in an active status over a year and a half, this period of service was voided.
2. With his period of active service being voided it, in effect, rendered his period of service as if he had not served at all; thus no characterization of service can be assigned.
3. The DD Form 214 is correct as issued.
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) AR20150003480
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