MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            3 June 1999
	DOCKET NUMBER:   AC97-06831
	AR1999021184

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Thomas B. Redfern, III		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 his uncharacterized discharge be changed to an honorable discharge.

APPLICANT STATES:  That at the time of his discharge he was being treated for a nervous disorder and he could not regain his mental stability.  He further states that he was hospitalized and administered drugs and he believes that he should not have been judged because of his mental illness.

COUNSEL CONTENDS:  That since the applicant alleges that he was hospitalized and administered drugs while on active duty, additional medical and health records are required to further argue his appeal.

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

On 29 September 1975, he enlisted in the Army for 3 years in the pay grade of 
E-1.  He successfully completed his training as an infantryman and he was promoted to the pay grade of E-3 on 29 September 1976.

Nonjudicial punishment (NJP) was imposed against the applicant on 19 January 1977, for stealing a bottle containing $20.00 (larceny).  His punishment consisted of a reduction in pay grade, a forfeiture of pay and restriction.

On 10 March 1977, NJP was imposed against him for being delerict in his performance of duty.  His punishment consisted of restriction and extra duty.

On 25 March 1977, NJP was imposed against him for being disrespectful to an NCO.  His punishment consisted of a forfeiture of pay, extra duty and restriction,
7 days of confinement to a correctional facility and a forfeiture of pay.

A review of the applicant’s records reveals that he was counseled on 25 occasions between 8 April 1976 and 9 May 1977.  On all except four occasions, his counseling included substandard performance of duty, substandard personal appearance, being late for duty, larceny, missing formation, being derelict in his duty, not performing guard duty and needing to be more responsible. 

The applicant was notified on 24 May 1977, that he was being barred from reenlistment.  He opted to submit a statement in his own behalf.  In his statement, he indicated that he wanted to stay in the Army because he could not afford to get out.  He further indicated that he didn’t have a high school diploma and that he regretted his past actions.  In concluded by stating that if given another chance to remain in the Army he would be the best soldier that he could be and that he would not get into trouble.

On 7 June 1977, an investigation was conducted regarding recruiter misconduct. Sworn statements were obtained from the applicant’s parents alleging that the recruiter provided questions and/or answers that were taken home and used by the applicant to study for his entrance test.  Although the recruiter denied the allegations, the applicant’s sworn statement confirmed that he had been provided with questions and answers by his recruiter the night before he was scheduled to take his entrance test.  He further stated that on the day of the test he was he was given the same questions and answers to the test that he had received from his recruiter the night before.

On 25 July 1977, the applicant was notified that was being recommended for elimination from the Army under the provisions of Army Regulation 635-200, chapter 14 for fraudulent entry.  He acknowledged receipt of the notification and, after consulting with counsel, he waived his rights and he opted not to submit a statement in his own behalf.

The recommendation for voidance of his enlistment due to fraudulent enlistment was approved by the appropriate authority on 9 September 1977.  Accordingly, on 16 September 1977, the applicant was released from active duty and his service was voided under the provisions of Army Regulation 635-200, chapter 14 for misconduct by reason of fraudulent enlistment.  His Report of Separation from Active Duty (DD Form 214) shows his character of service as “none”.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct by reason of fraudulent enlistment/reenlistment.  Paragraph 14-5c provides, in pertinent part, that in each instance in which it has been established that the enlistment/reenlistment of a service member was fraudulent an inquiry will be made to determine if the fraud was aided by a recruiting official.  If such action by a recruiting official is verified, voidance is mandatory.

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.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  An investigation was conducted and it was determined that the applicant’s fraudulent enlistment was conveyed by a recruiting official.  He was provided with the questions and answers to his entry test on the night before he was scheduled to take the test.  

3.  Counsel’s contention has been noted by the Board.  However, the staff of the Board attempted to obtain all of the available records prior to counsel’s review without much success.  However, there is no evidence in the available records to substantiate the applicant contention that he was being treated for a nervous disorder or that he was mentally ill at the time of his separation of the Army.  In accordance with Army Regulation 635-200, chapter 14, voidance of his enlistment was mandatory.    

4.  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.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  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

__rvo ___  ___kan__  __tbr  ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-06831/AR1999021184	
SUFFIX		
RECON		
DATE BOARDED	1999/06/03	
TYPE OF DISCHARGE	UNCHAR	
DATE OF DISCHARGE	1977/09/16	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.  626	A60.00	
3.  644	A62.00	
4.  471	A07.20	
5.		
6.