MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           10 October 2002
	DOCKET NUMBER:   AR2002072598

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner 		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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 he be given a $5,000.00 enlistment bonus for military occupational specialty (MOS) 63B (Light-Wheel Vehicle Mechanic) instead of the $8,000.00 bonus he was to receive for MOS 67T (Tactical Transport Helicopter Repairer).

APPLICANT STATES:  He did not list an arrest on his enlistment contract because the charges had been dismissed.  Based upon that dismissal, he believed that the arrest should be treated as if it never existed.  As such, he did not believe that it was required to be listed on the documents he completed in conjunction with his enlistment.

In support of his request the applicant submits documents showing that his new unit was authorized a bonus at the time of his enlistment.  He also submits a memorandum from the State Adjutant General of Illinois, who recommends that the applicant be given his bonus since he was not voluntarily transferred between units or MOS’s, and his new unit and MOS are also approved for a bonus.

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

He enlisted in the Army National Guard (ARNG) on 20 October 2000 in pay grade E-1 with no prior service.  In conjunction with that enlistment, he completed a bonus addendum for $8,000.00 for MOS 67T.

As part of his enlistment contract, he completed a Security Clearance Application in which he answered the question, “In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not [otherwise] listed . . . For this item, report information regardless of whether the record in your case has been ‘sealed’ or otherwise stricken from the record," as “No.”

The applicant had just completed basic combat training when his arrest record was discovered.  As a result, he was placed in training for MOS 63B instead of MOS 67T.  He successfully completed that training, was awarded MOS 63B, and was returned to his ARNG unit.  He was then transferred to a unit which had a vacancy for his new MOS.

Army Regulation 135-7 authorizes cash bonuses for nonprior service USAR and ARNG enlistees who either enlist or reenlist, as appropriate, in either a critical MOS or a critical unit, as designated by the Department of the Army, for at least 6 years.  Paragraph 2-6 of this regulation stipulates that a bonus will be 

terminated if a soldier is separated from his or her unit or is moved from a position which requires the MOS for which he or she was given a bonus.

Army Regulation 135-178 sets forth the basic authority for the separation of USAR and ARNG enlisted personnel.  Chapter 9 establishes policy and prescribes procedures for separating members for fraudulent enlistments, reenlistments and extensions.  For the purpose of this chapter, fraudulent entry of an individual who enlists by misrepresentation, concealment or omission of information which, if known, might have resulted in rejection.  Such information includes periods of prior service, true citizenship, civil conviction, records as a juvenile offender, concealment of medical defects, Absent Without Leave or desertion during a period of prior service, pre-service homosexuality, misrepresentation with regard to legal custody of children and concealment of other disqualifications.  Soldiers discharged under chapter 9 may be issued an honorable discharge, a general discharge or discharge under other than honorable conditions.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant was not entitled to retain his bonus since he was not awarded the MOS, and was transferred from the unit, for which he enlisted.  The fact that he did not voluntarily transfer to another unit and MOS, and the fact that his new unit and MOS are approved for a bonus, are not mitigating in this case.  The applicant was involuntarily transferred to another unit and MOS because his concealed arrest disqualified him for the MOS for which he enlisted. 

2.  The Board also notes that since the applicant’s arrest record disqualified him for his enlistment MOS, that concealment constituted fraudulent entry.  The fact that he was retained does not alter the fact that he fraudulently enlisted.

3.  The applicant’s contention that he did not list his arrest because the case against him had been dismissed is not accepted by the Board.  He was told, in writing, that he had to list any arrest or charge regardless of whether the record in his case has been sealed or otherwise stricken from the record.

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

___jtm___  ___rwa__  ___rjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2002072598	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021010	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.05	
2.		
3.		
4.		
5.		
6.