PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           2 March 2000                  
	DOCKET NUMBER:   AR1999027255

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

	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Edwin S. Castle		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Kathleen A. Newman 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that item 24 (Character of Service) on his DD Form 214 be corrected to show an under honorable conditions (general) discharge instead of “NA”.   

3.  The applicant states, in effect, that the Army never produced sufficient evidence to substantiate a fraudulent enlistment, that the allegations were by verbal expression and that he was not given or provided with any documentation to support the charges.  He also contends that he requested a Board of Inquiry and was denied the hearing and due process of such a hearing.  He goes on to state that the investigation into the facts of the allegations against him was improper and not in accordance with the Uniform Code of Military Justice.  He states that his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not indicate what type of discharge was issued for his character of service.  He contends that the Army failed to produce documentation or verification of fraudulent enlistment with intent to defraud, failed to investigate and verify the allegations made against him, failed to protect his Constitutional rights by denial of confrontation of his accuser, and failed to show that the applicant’s separation was for the good of the service.  He further states that there is no proof of a wrong, violation, or crime committed.  He believes that his discharge was unfair and unjust and contrary to his conduct in the Army and service to the United States for one year and a half.  In support of his application, he submits a petition dated 30 November 1998 and exhibits A-Y.          

4.  The American Legion, as counsel for the applicant, reiterates the applicant’s claim that his service was honorable and that if his case were to be reviewed under current standards, he would be entitled to significant rights that were lacking at the time of his discharge.  Counsel contends that the regulation involving fraudulent enlistment has changed since the applicant’s discharge and Army Regulation 635-200, chapter 7, would be the appropriate regulation.  Counsel also contends that under chapter 7-22 service members must waive their right to a board hearing before an other than honorable discharge can be given, which the applicant did not do.  Also, the discharge authority must verify and prove that there was fraudulent entry by the service member.

5.  The applicant’s military records show that he enlisted on 27 October 1980 for a period of 3 years.  He completed training and was transferred to Fort Polk, Louisiana, for duty as a cavalry scout.  The applicant’s records show that he was promoted to E-3 on 1 October 1981.

6.  On 15 April 1982 the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for fraudulent entry. The unit commander based his recommendation for separation on the applicant’s concealment of conviction by civil court and concealment of record as a juvenile offender.  The unit commander also stated “In accordance with AR [Army Regulation] 635-200 under chapter 14, SM [service member] did in fact fraudulently enlist into service and has not made any contributions to his unit and as the commander I feel there is no reason for him to continue further service.”    

7.  The applicant consulted with counsel on 20 April 1982 and requested consideration of his case by a board of officers, requested a personal appearance before a board of officers and elected to submit a statement on his own behalf; however, he failed to submit one.  The intermediate commanders recommended that a board of officers be convened.  On 20 May 1982 the separation authority disapproved the applicant’s request for a board of officers and directed that the applicant’s enlistment be voided due to fraudulent entry. 

8.  Accordingly, Headquarters 5th Infantry Division (Mechanized) and Fort Polk Orders 104-158, dated 28 May 1982, released the applicant from custody and control of the Army effective 1 June 1982.  The applicant’s DD Form 214 shows that he was discharged under the provisions of Army Regulation 635-200, paragraph 14-5(a)(3), for fraudulent entry.  Item 24 (Character of Service) on the applicant’s DD Form 214 shows “NA”.
 
9.  Item 12c (Record of Service/Net Active Service This Period) on the applicant’s DD Form 214 shows “00 00 00”.  Item 18 (Remarks) on the DD Form 214 shows “Time served is not creditable for promotion or longevity/Nothing Follows”.  The applicant’s records show he enlisted on 27 October 1980 and was discharged on 1 June 1982, thereby serving a total of 1 year, 7 months and 4 days of active service. 

10.  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/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct. The regulation states that a member discharged under the provisions of this chapter will be furnished an honorable discharge, or a general discharge or an under other than honorable conditions discharge.  Paragraph 14-5(a)(3) states 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 indicated above are authorized to void fraudulent enlistments/reenlistments when the service of the member is of too short duration to properly apply establishment standards for award of an honorable, general, or an under other than honorable discharge, unless other conditions exist which clearly justify award of such a discharge.

11.  Army Regulation 635-200, paragraph 1-13b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization. 

CONCLUSIONS:

1.  The Board noted the applicant’s contentions; however, there is no evidence of record available to the Board to support his contentions.

2.  On 1 June 1982, the applicant was discharged for fraudulent entry.  The discharge proceedings were conducted in accordance with law and regulations applicable at that time.  The applicant’s separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.        

3.  The Board notes that the regulation in effect at the time authorized the discharge authority to direct a general discharge if such is merited by the soldier’s overall record.

4.  Based on the applicant’s length of service, no record of judicial or nonjudicial punishment and the fact that he was promoted to E-3, the Board concludes that the applicant’s record is satisfactory and a general discharge is warranted.

5.  Evidence of record shows the applicant served 1 year, 7 months and 4 days of creditable service.  Therefore, he is entitled to correction of item 12c (Record of Service/Net Active Service This Period) on his DD Form 214 to show this service.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected: 

a.  by showing that the individual concerned received a general discharge from active duty on 1 June 1982; and  

	b.  by showing the entry “01 07 04” in item 12c (Records of Service/Net Active Service This Period) on his DD Form 214. 

BOARD VOTE:  

ESC____  SK______  KAN____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Edwin S. Castle_______
		        CHAIRPERSON

INDEX

CASE ID	AR1999027255	
SUFFIX		
RECON		
DATE BOARDED	20000302	
TYPE OF DISCHARGE	(NA)	
DATE OF DISCHARGE	19820601	
DISCHARGE AUTHORITY	AR 635-200 paragraph 14-5(a)(3)  	
DISCHARGE REASON	Fraudulent entry	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.