MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 June 2000                   
	DOCKET NUMBER:   AR2000035858

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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 his records be corrected to show he did not fraudulently enlist and that he be paid his bonus.

APPLICANT STATES:  In effect, that he wrote all his law violations on his enlistment papers.  The fourth enlistment paper is not legal.  He did file his claim within the required 3 years.  He filed his claim on his discharge papers.

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

He enlisted in the Regular Army on 19 March 1974 for 3 years.  He enlisted for the Special Unit Enlistment Option only, not for a bonus or for any other option.  On DA Form 3286, Statements for Enlistment, part II, item 2 he checked that he had been arrested, charged or held by law enforcement authorities.  In part II, item 3, on the reverse side of the form, he was required to give full details for that positive response.  He wrote that he was arrested for speeding in September 1973 and fined $20.00.  He listed no other offenses.  

On 3 June 1974, the commander initiated discharge action for fraudulent enlistment.  During the applicant’s National Agency Check it was determined that he had failed to list a civilian conviction for automobile theft in 1968 for which he served two years confinement and two subsequent parole violations.  He also failed to list a conviction for operating a motor vehicle without the consent of the owner, leaving the scene of an accident and violating a temporary permit.  The unit commander indicated that the applicant was a substandard soldier who needed constant supervision despite repeated counseling.

On 11 June 1974, the applicant was advised by consulting counsel of the basis for his contemplated discharge.  The applicant made a statement in his own behalf wherein he stated that he had a strong desire to be a soldier; that he felt a strong personality conflict was involved in the matter, and that he was never given the numerous amount of counseling sessions as stated.  He did not deny the charges against him or deny that he failed to inform the Army of those law violations prior to his enlistment.

On 21 June 1974, the appropriate authority approved the recommendation and directed that the applicant be issued a General Discharge Certificate.   

On 1 July 1974, the applicant was discharged, with a general discharge, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14 for fraudulent entry. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, chapter 14 established policy and prescribed procedures for processing a soldier for separation due to misconduct by reason of fraudulent entry into the service.  It stated that upon verification of the fraudulent entry, action would be taken to suspend the individual’s pay and allowances.  Upon verification, the general court-martial authority (GCMA) could direct discharge and issuance of an honorable or general discharge certificate or, if the individual waived his rights to present his case before a board of officers, discharge and issuance of an undesirable discharge certificate. 

On 9 September 1981, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

On 2 August 1989, this Board determined that the applicant had not submitted his application within the time required and found insufficient justification to conclude it would be in the interest of justice to grant the relief requested or to excuse the failure to timely file.

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 this requirement.

2.  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.  

3.  The evidence of record shows that the applicant concealed his arrest record upon his enlistment.  The reverse side of the DA Form 3286 clearly shows he listed only one speeding offense when he had had several other offenses, to include a felony conviction with confinement, that should have been listed.  He denies those charges now but provides no evidence to show they are erroneous. In addition, the Board notes that he did not deny those charges in 1974 when he was being processed for fraudulent enlistment.

4.  The Board notes that he did not enlist for a bonus and so would not be entitled to a bonus in any case.  

5.  The Board cannot determine what the applicant is referring to when he claims 
the fourth enlistment paper is not legal but the Board concludes it has no bearing on his discharge for fraudulent enlistment.

6.  The applicant provides no evidence to show he filed his claim or application to the Board in 1974.  The Board notes his disagreement with the 1989 Board determination that he did not timely file.  However, that contention is now moot as this Board has considered his claim.

7.  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

__mdm___  _wtm____  __clg___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000035858	
SUFFIX		
RECON		
DATE BOARDED	20000627	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.