MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 September 2000                   
	DOCKET NUMBER:   AR2000041849

	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. Ernest M. Willcher		Member	
	Mr. Donald P. Hupman, Jr.		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:  That items 25, 26, 27, and 28 of his Certificate of Release or Discharge from Active Duty, DD Form 214, for the period ending       3 September 1981 be corrected to show he did not fraudulently enter the Army and item 13 be corrected to add the Vietnam Combat Certificate.  He also requests that his DD Form 214 for the period ending 11 March 1970 be corrected to add the Vietnam Combat Certificate.

APPLICANT STATES:  That he was discharged for a conviction of a charge that was later dismissed and removed from the records.  Supporting evidence is as listed on the DD Form 149.

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

He had prior service from March 1968 – March 1970 during which period he served in Vietnam.  The 1st Cavalry Division awarded the applicant the 1st Cavalry Division Airmobile Vietnam Combat Certificate.

On 23 December 1972, the applicant was arrested for selling dangerous drugs – 23.4570 grams and 3.09959 of marijuana on two separate days.  On 24 October 1973, he pleaded guilty to the charge and he was given a deferred imposition of sentence of a period of 18 months and placed under supervision.  He was informed that at the end of one year he could withdraw his guilty plea and the court would order that the charge be dismissed.  On 30 September 1974, the applicant withdrew his guilty plea, his withdrawal of his plea was accepted, his probationary period was terminated, and the charge was dismissed and removed from the records of the court.

On 16 January 1980, the applicant enlisted in the U. S. Army Reserve Delayed Entry Program.  

The instructions for completing item 35 of his Record of Military Processing – Armed Forces of the United States, DD Form 1966/5, were to initial in the appropriate space (of questions a through f) if his answer was truthfully “no.”  He was not required to answer “yes” to a question but could have requested a personal interview in which he could have provided the required information.  A “yes” answer would not necessarily disqualify him for enlistment; it would depend on the circumstances surrounding the situation involved.  In item 35c, he initialed the “no” block to the question “Have you ever been involved in the use, purchase, possession, or sale of marijuana, LSD, or any other…”  

The instructions for completing item 36 of his DD Form 1966/5 informed him that his answers to questions a through f would be verified to determine any previous records of arrest or convictions and that if he concealed such records he could, upon enlistment, be subject to disciplinary action and/or discharge from the military service.  In item 36a, he initialed the “no” block to the question “Have you ever been arrested, charged, cited…regardless of whether the citation or charge was dropped or dismissed or you were found not guilty?”  In item 36b, he initialed the “no” block to the question “As a result of being arrested, charged, cited, …have you ever been convicted, fined.(regardless of whether the record in your case has been “sealed,” expunged, or otherwise stricken from the court record?)”

In item 37 of the DD Form 1966/6, the applicant acknowledged that he had “been told not to withhold any information concerning my arrest or conviction record or physical status.”

On 15 February 1980, the applicant enlisted in the Regular Army and entered active duty.

Around July 1980, it was discovered that the applicant had been previously arrested.  Action to separate him for fraudulent enlistment was initiated around January 1981.  His chain of command supported his retention in the service.  His brigade commander had noted that “The complex language and text of the court documents could be easily misunderstood and cause confusion.”  His case was forwarded through channels to Headquarters, Department of the Army.  The final decision paperwork is not available.  However, in forwarding the decision back down the chain of command the Military Personnel Center had noted that that headquarters had supported the request to retain the applicant.  The Office of the Deputy Chief of Staff for Personnel (ODCSPER), however, had disapproved the request.  ODCSPER had noted that although the court language may have been misunderstood, the questions posed in blocks 36a and b of the DD Form 1966/5 of the applicant’s enlistment agreement, to which he replied in the negative, were easily understood and should have been marked accordingly.

On 3 September 1981, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 14, section II for misconduct, fraudulent entry with a reentry code of 3.

On 8 October 1981, the judge who presided against the applicant in his criminal case made a sworn affidavit to the effect that the legal effect of the dismissal of the charge was that the applicant was never convicted of a criminal charge.  He specifically recalled telling the applicant that in filling out any application for job employment, after the dismissal of the charge, that he should say that he had never been convicted of a felony.

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.  Any waivable or nonwaivable disqualification concealed, omitted or misrepresented constitutes fraudulent entry.

Army Regulation 601-210 governs eligibility criteria, policies and procedures for enlistment of persons into the Regular Army and the U. S. Army Reserve.  To ensure equal treatment to all persons applying for enlistment, despite the variance in State statutes, certain rules are provided as guides to those responsible for processing waivers.  One rule notes that some States have procedures for a later “expunging of the record,” dismissal of charges, or pardon. Such action removes the “initial conviction” or “other adverse disposition” so that, under State law, the applicant has no record of conviction or adverse juvenile adjudication.  Despite the legal effect of this action, a waiver authorizing enlistment of such an applicant is required and the record must be revealed.  Another rule notes that the term civil court conviction means a judgment of guilty or accepted plea of nolo contendere is entered in a court’s records for persons tried as adults.  Later proceedings deleting an initial determination of guilt from court records based on evidence of rehabilitation or completion of a satisfactory probationary period recognize rehabilitation.  They do not change the fact that the offender committed the criminal act.

In accordance with Army Regulation 601-210, civil court conviction or adjudication related to possession or use only of marijuana is a waivable disqualification.  A waiver is not permitted for convictions involving sale or trafficking of marijuana or any other controlled substance.

Army Regulation 635-5 prescribes the separation documents prepared for soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that only decorations, medals, badges, citations and campaign ribbons will be entered on the DD Form 214.

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.  Certificates are not authorized entries on the DD Form 214.

3.  The Board and Army regulations acknowledge the reasoning behind the State court deleting his initial determination of guilt from court records based on his completion of a satisfactory probationary period.  It was to recognize his rehabilitation and allow him to start “fresh” with a “clean record.”  However, not all states do this for offenders.  The Department of Defense, which enlists individuals from all 50 states and territories, attempts to ensure equal treatment to all persons applying for enlistment.  One way to do this is to check if the individual applying for enlistment has ever committed a crime and not just check if a conviction is on that individual’s records.  That is why the DD Forms 1966 series ask for more information than just whether the individual has been convicted of a crime.

4.  The Board concludes that even if the applicant had based his “no” answer to question 36b of the DD Form 1966/5 on the wording of the court documents and the instructions he received from the judge, there was no reason for him to have answered “no” to questions 35c (he had been involved in the possession and sale of marijuana) and 36a (he had been arrested).  Despite the legal effect of the dismissal of his conviction, a waiver authorizing his enlistment was required and the record must have been revealed.  Any waivable or nonwaivable disqualification concealed, omitted or misrepresented constitutes fraudulent entry.  The applicant concealed his (nonwaivable) disqualification and so fraudulently enlisted.  His discharge and the reentry code given were and still are appropriate.

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

__rvo___  __emw___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041849	
SUFFIX		
RECON		
DATE BOARDED	20000928	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.04	
2.	110.02	
3.		
4.		
5.		
6.