MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           13 September 2001
DOCKET NUMBER:   AR2001053638

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John E. Denning		Member	
	Ms. Terry L. Placek		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 discharge be upgraded to a fully honorable discharge.

APPLICANT STATES:  In a letter to his Representative in Congress, that he did not fraudulently enlist and that he has spent a tremendous amount of time trying to get his discharge upgraded.  In support of his request, he also submitted an Executive Department Proclamation, dated 30 December 1996, showing that he was granted a pardon/clemency by the Governor of the State of Arkansas.

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

Prior to the period of service under review, he served in the United States Marine Corps from 16 February-21 May 1971.  He was honorably discharged under the provisions of paragraph 6016.1a, Marine Corps Separation Manual, by reason of unsuitability due to inaptitude.  He had completed 3 months and 6 days of creditable active service and he had no recorded lost time. 

On 12 July 1972, the applicant and two co-defenders appeared in the Circuit Court of Crawford County, Arkansas and pled guilty to grand larceny.  The applicant was convicted and sentenced to serve 2 years (suspended) in the state penitentiary. 

On 4 January 1973, the applicant enlisted in the Regular Army for 3 years and the unit of choice option (101st Airborne Division, Fort Campbell, Kentucky).  On 11 January 1973, he was assigned to Fort Leonard Wood, Missouri for Basic Combat Training (BCT).  

In an undated statement, the applicant contends that he told his recruiter about both his prior service and his felony conviction.  The recruiter told him not to say anything else about it and added that since the felony did not take place in the county of his residence, he would be eligible to enlist.  Later during the first week of BCT, he was told that if he came forward with the correct information, nothing that he concealed during the enlistment process would be held against him.  He states that he decided to tell everything.  

On 24 January 1973, the Chief, Personnel Actions Unit, Trainee Personnel Section, Fort Leonard Wood requested that Headquarters Department of the Army, Washington, DC verify whether the applicant had prior service.  The applicant had claimed no prior service when he enlisted.

On 4 April 1973, upon completion of BCT, the applicant was assigned to Fort Campbell for Advanced Individual Training in military occupational specialty (MOS) 11B (Infantryman).  He did not complete the required training; therefore, he was never awarded the MOS.
On 26 April 1973, the Military Personnel Center, Alexandria, Virginia, forwarded a Federal Bureau of Investigation report and a DD Form 214 (Report of Separation from Active Duty) to Fort Leonard Wood that indicated the applicant had concealed his prior service and his felony conviction. 

The applicant left his unit in an absent without leave (AWOL) status from 4 June-3 July 1973.

Unit Orders Number 62, Headquarters, 2/17 Calvary, 101st Airborne Division, dated 30 August 1973, show that, on 10 August 1973, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for misconduct.  His punishment included reduction from pay grade E-2 to pay grade E-1.  The orders did not specifically state the nature of the misconduct.

On 18 July 1973, the commander notified the applicant that he was being recommended for discharge with a UD under the provisions of Army Regulation 635-200, chapter 14, due to fraudulent entry.  The commander also cited that the applicant had been counseled on numerous occasions, but to no avail; he had no desire to conform to the military way of life; he had made no attempt to improve his attitude or job performance; and he had been unable to graduate from AIT due to his frequent AWOL's.

On an unknown date, the applicant consulted with legal counsel.  He was advised of the nature of the contemplated separation action and its effects.  He was also advised of the rights available to him.  He acknowledged that he understood the issuance of a UD would make him ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He requested a personal appearance before a board of officers.  He did not submit a statement.

On an unknown date, the applicant was notified that a board of officers would convene on 10 September 1973 to determine whether he should be discharged due to fraudulent entry under the provisions of chapter 14, Army Regulation 
635-200.

On 10 September 1973, the applicant appeared before the board of officers with counsel.  During the board proceedings, the applicant's psychiatric/mental status evaluation, his enlistment contract, proof of his civil conviction, and a copy of his DD Form 214 showing prior service were received into evidence.  

On the same date, the board of officers concluded that the applicant's disciplinary record and his testimony indicated a negative attitude towards retention in the service, or rehabilitation, and that these acts of a discreditable nature would probably continue if he were to be retained.  Therefore, the board of officers recommended that he be separated with a UD.

On 9 October 1973, the final approval authority directed that the applicant be separated due to fraudulent entry with a UD.  

On 18 October 1973, the applicant was separated with a UD under the provisions of chapter 14, Army Regulation 635-200, for misconduct--fraudulent entry.  He had completed 8 months and 16 days of military service and he had 29 days of lost time. 

On 7 February 1974, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.  On 14 September 1979, the ADRB again denied his request for an upgrade of his discharge under the provisions of the Special Discharge Review Program.

On 30 December 1996, the governor granted the applicant clemency, specifically a pardon for the 12 July 1972 felony.  He cited the fact that the applicant was 18 years old at the time of the offense, that he had fully rehabilitated his life in that he had no further felony or misdemeanor convictions, and that he was disabled.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  This chapter provides that a member who denied that he had a criminal record or that such a record existed at the time of entry into the service, or if the member concealed the adjudication as a juvenile offender for a felonious offense, a UD is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may also be awarded.

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 this requirement.

2.  At the time of his enlistment, the applicant knowingly concealed a prior service record and a criminal (felony) conviction, both of which were disqualifying factors.  Therefore, the type of discharge directed and the reason for discharge were appropriate considering the facts of the case.

3. The Board notes that the applicant has been granted clemency for his felony conviction and that he has no subsequent misdemeanor or felony convictions. Although laudable, these accomplishments do not overcome his fraudulent entry or his substandard record of service, which includes an extended period of AWOL.

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

__fne____  __jed___  __tlp  ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001053638	
SUFFIX		
RECON	 	
DATE BOARDED	20010913	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19731008	
DISCHARGE AUTHORITY	AR 635-200, Chapter 14 	
DISCHARGE REASON	A62.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.6200	
2.		
3.		
4.		
5.		
6.