MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 May 2000                   
	DOCKET NUMBER:   AR2000038907

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Christopher J. Prosser		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 an honorable discharge and all benefits due him.

APPLICANT STATES:  That he served honorably in the Army for almost 18 months and he should not be penalized for the fraudulent actions of his recruiter.

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

He enlisted in the U. S. Army Reserve (Delayed Entry Program) on 27 February 1976.  He enlisted in the Regular Army on 1 March 1976.  He completed basic training and advanced individual training and was awarded military occupational specialty 82C (Artillery Surveyor Specialist).  He was assigned to Fort Polk, LA on 30 July 1976.

On 27 October 1976, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 16 through 25 October 1976.  His punishment was a forfeiture of $75.00 pay
for 1 month, a suspended reduction to pay grade E-1 and 14 days extra duty. 

On 11 November 1976, the Fort Sam Houston Field Office, U. S. Army Criminal Investigation Command (CID) requested assistance from the Fort Polk CID Field Office in completing an inquiry into recruiter misconduct at the San Antonio District Recruiting Command.  

On 15 November 1976, the applicant’s suspended reduction was vacated and he was reduced to pay grade E-1.

On 16 November 1976, the Fort Polk CID office received the request for assistance.  On this date, the applicant was interviewed by CID to ascertain the procedures that he had undertaken to get into the Army.  The applicant made a sworn statement indicating that his recruiter had provided answers to some of the questions on his entrance examination.

The applicant departed AWOL 17 through 18 November 1976 and again on        3 through 23 January 1977.

On 24 January 1977, the applicant was notified of his commander’s intention to initiate elimination action on him under the provisions of Army Regulation       635-200, chapter 14 for fraudulent entry. 

On 25 January 1977, the applicant completed a separation physical examination and was found qualified for separation.  He completed a mental status examination on this date and was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.
On 1 March 1977, the applicant departed AWOL.

On 28 March 1977, the recommendation for elimination was forwarded to the commanding general for action.  On an unknown date the commanding general approved the recommendation and directed that the applicant’s enlistment be voided.   

On 6 April 1977, the applicant returned from AWOL.

On 7 April 1977, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14 for fraudulent entry.  He received no discharge certificate.  His DD Form 214, Report of Separation from Active Duty, item 9e shows his character of service as “NA.”  Item 18 of his      DD Form 214 shows he had no credit for active service and 3 days credit for inactive service.  Item 27 shows he had 70 days lost time.

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.  Change 42, dated 14 December 1973 to the regulation provided that the GCMA could direct that the fraudulent entry be voided when the individual was in a status of unauthorized absence or desertion.  Department of the Army message 302228Z March 1976, Subject, Change to Army Regulation 635-200, provided that in all cases involving recruiter connivance the GCMA would void the enlistment by issuing orders releasing the individual from Army control for fraudulent entry.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  His service was properly voided in accordance with regulatory guidance in effect at the time.
3.  The Board concludes the applicant’s service, which amounted to about 11 months of service, not 18 months, was not honorable.  The Board concludes that, had the 30 March 1976 message not provided for a voided enlistment when fraudulent entry was committed with the connivance of the recruiter or had change 42 to the regulation not earlier provided for a voided enlistment because he was in a status of unauthorized absence, he would likely have been recommended for and have received an undesirable discharge.  Such a discharge would still not have entitled him to benefits.

4.  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___  __jma___  __cjp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038907	
SUFFIX		
RECON		
DATE BOARDED	20000511	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.