MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 November 2000                   
	DOCKET NUMBER:   AR2000044240

	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. George D. Paxson		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Paula Mokulis		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 his discharge be changed to honorable.

APPLICANT STATES:  That he believes he is a veteran because he did serve.  The Army says he did not.  At the time he enlisted, he told his recruiter he was on probation but his recruiter said not to worry about it.  His recruiter lied to him.

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

He enlisted in the Regular Army on 10 October 1979.  On his Application for Enlistment – Armed Forces of the United States, DD Form 1966/5, he listed that he had been arrested, had been convicted, and had served time in jail but that he was not then involved in or a party to or connected with any court action.  He went on to list four offenses for which he was involved with law enforcement authorities– speeding, no inspection sticker (twice), suspicion of theft, and miscellaneous theft.

On 15 April 1980, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for willfully disobeying an order.  

A local records check revealed that the applicant did not list all of his civil arrests on his DD Form 1966/5 and that he had been placed on 5 years probation on     20 July 1977 for burglary of a vehicle (felony).  His probation officer had advised the applicant’s parents that the applicant could not join the military while he was under probation for a felony.  He also stated that no action had ever been taken to shorten the applicant’s probation and that he would take action after 30 days to obtain a warrant for his arrest for violation of parole.

The applicant was questioned concerning his recruiter.  He stated that his recruiter told him not to list some of his arrests and that he, the recruiter, would deny knowing about all of his arrests if he were asked about it.

On 14 May 1980, the applicant’s commander initiated discharge action under the provisions of Army Regulation 635-200, paragraph 14-5 for fraudulent entry.  His commander recommended his retention in the service because he had good potential to be an excellent soldier.  

The applicant was advised by consulting counsel of the basis for the contemplated action.  He submitted a statement in his own behalf wherein he noted that he was a good soldier.  He was not perfect but he liked it in the service and there was no doubt in his mind that he could make it as a soldier.

The battalion commander recommended the applicant be retained in the service as he was a good soldier who trained hard and was well-disciplined and motivated.  

On 9 May 1980, the 105th District Court of Nueces County, TX ordered that the applicant’s probationary period be reduced and terminated effective immediately. The verdict was set aside and the applicant was released from all disabilities and penalties resulting from the offense for which the probation was imposed.

On 13 June 1980, the applicant’s brigade commander recommended that the applicant not be retained in the service.  He personally interviewed the applicant, noted the statements from the applicant’s chain of command and former adult probation officer and his extensive and continuing inability to stay out of trouble with authorities.  He noted the applicant’s civilian arrest record which included three offenses not noted on his DD Form 1966/5 – auto burglary, auto burglary and burglary of a building, and burglary of a vehicle.  He noted that alcohol consumption was a major part of the applicant’s problem and that the applicant admitted that he still drank although only in moderation.  The brigade commander believed that the applicant would not stay out of trouble with authorities and that he would continue to have problems with alcohol.

On 17 July 1980, the applicant was released from custody and control of the Army, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14 for misconduct - fraudulent entry.  His DD Form 214, item 24 shows his character of service as “NA.”  Item 12 of his DD Form 214 shows he had no credit for active or inactive service.

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.  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.

Army Regulation 601-210 governs eligibility criteria for enlistment and processing of persons into the Regular Army and the U. S. Army Reserve.  In pertinent part, it states that civil restraint such as confinement, parole, probation or suspended sentence is a nonwaivable disqualification for enlistment.

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.  His service was properly voided in accordance with regulatory guidance in effect at the time.

3.  The Board notes that while the applicant stated that his recruiter told him not to list some of his arrests, his recruiter also warned him that he would deny knowing about all of his arrests if he were asked about it.  After this warning, the applicant still failed to list all of his arrests or court actions on his DD Form 1966/5.  

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

__GDP___  __MHM___  __PM____  DENY APPLICATION

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

INDEX

CASE ID	AR2000044240	
SUFFIX		
RECON		
DATE BOARDED	20001107	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.