MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            23 December 1998
	DOCKET NUMBER:   AC98-08434

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Joyce A. Wright		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Lester Echols		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be retired for length of service and placed on the retired list as a sergeant (SGT/E-5).

APPLICANT STATES:  In effect, that upon his discharge from the Army he did not have a copy of his separation document (DD Form 214) for his service in the US Air Force.  However, he did request a copy from the Army Reserve Personnel Center (ARPERCEN), St Louis, Missouri.  In support of his application he submits copies of his DD Form 214’s for his service in the US Army and the US Air Force. 

EVIDENCE OF RECORD:  The applicant's military records show:

He initially enlisted in the US Air Force Reserves on 31 May 1974 for a period of 6 years.  He enlisted in the Regular Air Force on 2 July 1974 for a period of
4 years.  

He was convicted by a special court-martial on 15 May 1979 of two specifications of larceny.  His sentence consisted of a forfeiture of pay, a reduction to the pay grade of E-3 (Airman First Class), 60 days restriction, and 30 days confinement at hard labor.  

On 22 October 1979, the applicant began to receive numerous counseling statements pertaining to ration control violations, and for failure to meet his personal financial obligations.

On 21 March 1980, the applicant’s commander notified him that action to 
separate him was being initiated under the provisions of Air Force Manual
39-12, chapter 2, section B, paragraph 2-15a, for misconduct  - frequent 
involvement of a discreditable nature with civil or military authorities.  He based his recommendation on the applicant’s numerous counseling statements,
letters of reprimand for ration control violations, larceny, dishonored checks,
and his court-martial conviction.

On 31 March 1980 his commander submitted the recommendation to 
discharge the applicant under the provisions of Air Force Manual 39-12, chapter 2, section B, paragraph 2-15a, for misconduct - frequent involvement of a discreditable nature with civil or military authorities.  

The appropriate authority approved the recommendation for separation on
11 April 1980 and directed that the applicant be issued a General Discharge
Certificate.

Accordingly, he was discharged on 21 April 1980 under honorable conditions in accordance with Air Force Manual 39-12, for misconduct - frequent involvement with civil/military authorities.  He had served 5 years, 8 months, and 26 days of total active service and was issued an RE code of RE-2B. 

After a break in service he enlisted in the USAR under the Delayed Entry 
Program (DEP) on 1 March 1982 for a period of 6 years.  He enlisted in the 
Regular Army for a period of 4 years on 5 May 1982.

Prior to enlisting the applicant completed a DD Form 1966 (Application for
Enlistment – Armed Forces of the United States).  On page 2 of his 
DD Form 1966 he indicated that he had never served in any of the Armed Forces.  However, this was incorrect due to his prior service in the US Air Force
as depicted by his DD 214 dated 21 April 1980.

The Army was unaware of his prior service and he continued to serve through
a series of continuous reenlistments.  He was promoted to the pay grade of E-5 effective 1 August 1989.

He was separated with an honorable discharge on 14 February 1997, under the provisions of Army Regulation 635-200, chapter 4, based on his completion of required active service.  He had served 14 years, 9 months, and 10 days of total active service in the Regular Army.  He was also transferred to the USAR
Control Group (Reinforcement) and was given full separation pay.

A review of the applicant’s records failed to reveal that a background check was conducted or that a waiver was ever approved for reentry into the Armed Forces. Additionally,  there is no evidence to show that he ever disclosed his prior
service to the Department.  

Army Regulation 601-210 sets forth the basic authority for Regular Army and
Army Reserve Enlistment Program.  Chapter 4 of that regulation provides for the waiver and nonwaiver enlistment criteria.  Paragraph 4-9, provides for prior
Military service.  It states in pertinent part, that a waiver is required for any
applicant or current member of a Reserve Component (RC) who was separated or discharged from any Component of the US Armed Forces for misconduct.  Waviers may not be submitted until a 2-year period has elapsed since separation or discharge.  The approval authority for enlistment into the RA is the Commanding General (CG), Personal Command (PERSCOM).

Pertinent Army Regulation provide that prior to discharge or release from active
duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, 
policies, and procedures for enlistment processing into the Regular Army and the USAR.  Chapter 3, of that regulation prescribes basic eligibility for prior service applicants for enlistment.  Paragraph 3-24, includes a list of US Air Force RE codes.  RE-2B applies to persons not eligible to enlist.

The Department of Defense Military Retired Pay Manual states, in pertinent  
part, that fully executed orders for retirement, if not cancelled before the date
of retirement, are final and may not be reopened unless there is evidence
that the qualifying service was obtained through fraud.

Title 10, U.S. Code, section 3914, provides in pertinent part, that an enlisted member of the Army who has at least 20, but less than 30 years of Active 
Federal Service, may, at the discretion of the Secretary of the Army be retired at
his request.  A regular enlisted member then becomes a member of the Army 
Reserve.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  

2.	In order for a Regular Army enlisted soldier to be voluntarily retired for length
of service, the individual must be on active duty and must make application
to the Department.  

3.	At the time the applicant was separated from the service, his records showed
that he had no prior service and that he had completed 14 years, 9 months, and 10 days of total active service. 

4.	Additionally, there is no evidence in the available records to show that he
inquired about retirement, made application for retirement, or made known the
fact that he had prior service. 

5.	The Board also notes that his records show that the applicant never obtained
a waiver to enlist in the Army and that he concealed his prior service in the      
Air Force for the duration of his career. 

6.	Therefore, the Board finds that the applicant attained entry into the Army by  
fraudulent means and continued to perpetrate the fraud for over 14 years.  Furthermore, had he not applied to the Board, his fraud may have never been discovered. 

7.	Inasmuch as it appears that the applicant attained his qualifying service
through fraudulent means, it would not be appropriate for the Board to recall
him to active duty for the purpose of retirement. 

8.	Consequently, the Board recommends that the applicant in his current          
USAR status, make application to the Department for a waiver of his prior service and fraudulent entry, and that he request a recall to active duty for the
purpose of retirement if his application is approved.  

9.	The Board finds no error or injustice in this case on the part of the         
Department.  However, the evidence of record show that the applicant knowingly concealed his prior service, which resulted in his not being able to apply for retirement while he was on active duty.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.  

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___ro___  ___le ___  __kak___  DENY APPLICATION

						Loren G. Harrell
						Director

CASE ID	AC98-08434/AR1999013399	
SUFFIX		
RECON	 	
DATE BOARDED	1998/12/23	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  136.00		
2.		
3.		
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6.