MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            02 December 1998                  
	DOCKET NUMBER:   AC98-11782

	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	
	Mr. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond v. O’Connor, Jr.		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. John H. Kern		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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:  In effect, that the character of service of his discharge be upgraded.  He states that he was discharged for fraudulent enlistment; that when he was informed by his recruiter that he received a waiver from the Department of Defense, that absolved him as far as he is concerned.  He is charging recruiter alliance and connivance to meet his (the recruiter’s) quotas in lieu of service.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

He enlisted on 16 April 1979 for a period of 3 years.  During his enlistment processing at the Armed Forces Examining and Entrance Station, he answered “no” to five questions on his enlistment application (DA Form 1966/5) concerning involvement with police or judicial authorities.  Two of the questions to which he answered “no” asked him if he had ever been arrested, charged, cited or held by any law-enforcement or juvenile authorities; and as a result of the foregoing, had he ever been convicted, fined, or forfeited bond, or adjudicated a youthful offender or juvenile delinquent.

A 10 May 1979 FBI report indicated that the applicant had been arrested on 
18 November 1978 and charged with shoplifting in the amount of $48.00 and was found guilty.  The report was processed by the installation security division on 15 August 1979 and forwarded to the applicant’s unit commander.

On 12 September 1979 the applicant’s commander recommended he be discharged for fraudulent entry under the provisions of Army Regulation 635-200, chapter 14.  The applicant was advised of his rights under Article 31, UCMJ, and acknowledged that his military status was invalid because it was based on an enlistment which was improper.  He requested that the defect be waived and he be allowed to remain on active duty to complete the period of service which he would have been required to serve if the defect had not occurred.  He stated that there was no recruiter connivance in his enlistment.

On 4 October 1979 the separation authority approved the commander’s recommendation.  The applicant was separated on 15 October 1979 at Fort Dix, New Jersey.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service as “not applicable” and narrative reason for separation as “misconduct  fraudulent entry.”
Army Regulation 635-200 sets for the basic authority for the separation of enlisted personnel on active duty.  Chapter 14, in effect at the time, contained the policy and outlined the procedures used in separating individuals for fraudulent entry.  It provided, in pertinent part, 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 may be cause for discharge for fraudulent entry.

The office of the Judge Advocate General has opined in previous cases of this nature that because an applicant’s enlistment was void ab initio for fraud, the applicant never acquired military status, and therefore, his DD Form 214 correctly reflected no active service.  The applicant was properly separated for fraudulent enlistment under regulations in effect at the time and the separation was not contrary to existing law.  Since the Army chose not to waive the defect in an applicant’s enlistment, the enlistment was void.  The applicant was, therefore, not entitled as a matter of law to the relief requested.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 15 October 1979, the date of separation.  The time for the applicant to file a request for correction of any error or injustice expired on 15 October 1982.

The application is dated 12 June 1998 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

Note:  The applicant’s DD Form 214 incorrectly credits him with 6 months net active service.  The Support Division, Army Review Boards Agency at St Louis, is requested to correct the record of service in item 12c to show no net active service credit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.