MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:   12 January 2000
DOCKET NUMBER:   AR1999024529

	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.

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		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:  In effect, that he be given credit for the 4 months and 22 days that he served in the Regular Army (RA).

APPLICANT STATES:  In effect, that he told his recruiter about his arrest for public drunkenness prior to his enlistment.  In support of his requests, he submits his DD Form 214 (Report of Separation from Active Duty).

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

On 18 December 1973, at age 21, the applicant was convicted by a civil court of reckless use of a gun.  He was sentenced to 1 year probation and court costs.

On 13 August 1976, the applicant enlisted in the RA for a period of 3 years and training in military occupational specialty (MOS) 72E (Telecommunications Specialist).  He listed a conviction for drunkenness in December 1975.

On 9 November 1976, the applicant received nonjudicial punishment under the provisions of the Uniform Code of Military Justice for failure to go to his appointed place of duty at the prescribed time.  His punishment included forfeiture of pay (suspended).

On 17 November 1976, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14.  The commander cited recruiter connivance as the basis for the recommendation.  

The applicant contends in a sworn statement, also dated 17 November 1976, that in June 1976, he told his recruiter about his conviction in 1973.  Further, he contends that he was told that he should only list his conviction for drunkenness. A friend was with him at the time of the visit.  The recruiter gave them some of the questions that they had to answer to pass the test and he told them that their records would probably not be checked.

On 13 December 1976, the applicant authenticated a statement with his own signature in which he acknowledged that he understood that his present contract was being voided, and that the time he had served would not count towards pay purposes, longevity, or retirement.  In the same statement he requested that he be allowed to reenlist. 

On 15 December 1976, the applicant’s commander recommended that he not be allowed to reenlist.  He stated that the applicant was a substandard soldier and that had he not been a fraudulent enlistee he would probably have been discharged under the Trainee Discharge Program.  
On 3 January 1977, the request for reenlistment was denied.  Competent authority voided the applicant’s contract under the provisions of paragraph 
14-4d, Army Regulation 635-200.  

On 5 January 1977, the applicant was separated under the provisions of paragraph 14, Army Regulation 635-200, for misconduct-fraudulent entry.  Due to his contract being voided, his DD Form 214 shows no active service.

Army Regulation 635-200 then in effect set forth the basic authority for the separation of enlisted personnel.  Chapter l4 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-4d provides that a member who denied that he had a criminal record or that such a record existed at the time of entry into the service, or if the member concealed the adjudication as a juvenile offender for a felonious offense, the period of service would be voided, the member normally would be separated, and the service was not creditable for pay, longevity, or retirement credit.  

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

2.	The Board took into consideration the applicant’s contention that he should be 
given credit for his period of voided service.  The time served during a period of voided service is not creditable for promotion, longevity, or recorded successful completion of basic training, advanced individual training nor any other in-service training.

3.  Notwithstanding his claim of recruiter malfeasance, he still concealed a criminal record at the time of enlistment.

4.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

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

JNS_____  INW_____  LLS____  DENY APPLICATION

Karl Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999024529	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED		
TYPE OF DISCHARGE	No characterization	
DATE OF DISCHARGE	19770105	
DISCHARGE AUTHORITY	AR 635-200, Chapter 14 	
DISCHARGE REASON	A62.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.6200	
2.		
3.		
4.		
5.		
6.