MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           23 February 2000
	DOCKET NUMBER:   AR2000036568

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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: Reconsideration of his earlier application to correct his records by upgrading his discharge.  He also requests that his reenlistment eligibility (RE) code be changed.

APPLICANT STATES: That the recruiter lied to him.  That he received several letters of commendation, but most of them have been removed from his record.  He was told previously that he had waited too long to apply, but he believes that he should be granted the requested relief because it took the Board so long to respond to his request.  He submits two copies each of two letters of commendation.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 29 November 1989  (COPY ATTACHED).

The applicant’s contentions constitute new argument that requires Board consideration.  

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 knew that he would not have been enlisted unless he concealed his crime.  While he might have learned this fact from the recruiter, he can not transfer the blame for his fraudulent enlistment.

2.  Regardless of the number of commendatory letters the applicant received, the quality of his brief service does not outweigh the fact that he would not have been in the service at all except for his own deception.  

3. There appears to be no basis for removal or waiver of that disqualification which established the basis for the reentry eligibility code.

4.  Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3-year time limit.  The Board has never denied an application simply because it was not submitted within the required time.

5.  Although the failure to timely file was cited in the original decision a reasonably alert reading of that document would reveal that the Board examined the merits of the applicant’s prior appeal.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__RVO__  __EB____  ___RJW_  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000036568	
SUFFIX		
RECON		
DATE BOARDED	 20000223	
TYPE OF DISCHARGE	 UOTHC	
DATE OF DISCHARGE	19790924	
DISCHARGE AUTHORITY	 AR635-200, ch14	
DISCHARGE REASON	Fraudulent Entry	
BOARD DECISION	UOTHC	
REVIEW AUTHORITY		
ISSUES         1.	A62.01	
2.		
3.		
4.		
5.		
6.