MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 July 2002
	DOCKET NUMBER:   AR2002072794

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		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 his discharge be upgraded.

APPLICANT STATES:  Through counsel, that he had informed his recruiter that he had a felony conviction for dealing cocaine.  The recruiter told him that it would be no problem because he would file for a waiver and that would take care of everything.  To his surprise, he was later summoned before his commander and told that charges were pending against him for misconduct – fraudulent entry.  He entered the military with the best of intentions and found himself ashamed and embarrassed for being treated like a criminal when he had been totally honest.  He asks for an upgraded discharge so he can access veterans’ benefits he believes he deserves.  He provides his Report of Separation from Active Duty, DD Form 214, for the period ending 6 October 1978 as supporting evidence.

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

He initially enlisted in the Army National Guard around March 1978.  His Army National Guard enlistment contract is not available.  He served on initial active duty for training (IADT) from 30 April – 6 October 1978 and was released from IADT with an honorable characterization of service.

The applicant enlisted in the U. S. Army Reserve Delayed Entry Program on     23 August 1979.  At this time, he completed a Record of Military Processing – Armed Forces of the United States, DD Form 1966/5.  In item 35a, he initialed that he had taken a narcotic substance.  In item 35d, he initialed that his use of alcoholic beverages had never resulted in the loss of a job, arrest by police, or treatment for alcoholism.  In items 36a and 36b, he initialed that he had been arrested and convicted or fined (whether the citation or charge was dropped or dismissed or he was found not guilty or whether the record in his case was “sealed,” expunged, or otherwise stricken form the court record).  In item 36f, where he was to explain any “yes” answers, he indicated that he was arrested for a parking violation in 1972 and fined.  In item 37, Remarks, he indicated that he tried marijuana once or twice but had no further desire to do so.

The applicant enlisted in the Regular Army on 18 September 1979 and was assigned to Fort Hood, TX.  

Apparently, a routine local agencies check revealed that the applicant had been arrested in September 1974 for possession of a smoking device, possession of a controlled substance, and contributing to the delinquency of a minor; in October 1974 for delivery of a controlled substance (cocaine); on 5 August 1975 for theft and illegal consumption; on 12 August 1975 for public intoxication; on 31 October 1977 for disorderly conduct and public drunkenness; on 17 November 1977 for criminal mischief; on 8 December 1977 for failure to appear; on 10 September 1978 for public drunkenness; and on 1 October 1978 for driving under the influence.

On 19 March 1980, 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 or about 27 March 1980, the applicant’s commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 14, misconduct - concealment of conviction by civil court.

On 27 March 1980, the applicant was advised by counsel of the basis for the separation action.  He waived consideration of his case by a board of officers, waived personal appearance before such a board, and waived representation by counsel.  He submitted a statement in his own behalf.  He stated that he explained to his recruiter about his past police record.  The recruiter’s reply was, “I don’t want to hear about it.  It is not important.”  The recruiter also stated in front of him and his wife that if it ever came up the recruiter would deny it.  The applicant’s wife provided a statement substantiating the applicant’s statement.

On 21 April 1980, the commanding general approved the recommendation and directed that the applicant’s enlistment be voided.   

On 14 May 1980, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14 for misconduct - fraudulent entry.  His DD Form 214 for this period, item 24 shows his character of service as “NA.”  Item 12 shows he had no credit for active service for this period; 5 months and 7 days of prior active service; and 1 year and 6 days credit for 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.  Paragraph 14-5a(1) provided that in all cases involving recruiter connivance the member’s enlistment would be voided 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 this requirement.

2.  Any misconduct on the part of the applicant’s recruiter did not excuse the applicant from omitting his record of civil arrests and convictions on his DD Form 1966/5.  Indeed, his record of civil arrests was much more extensive than just the conviction for dealing cocaine which he contends he informed his recruiter.  His 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.  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__  __MHM__  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2002072794	
SUFFIX		
RECON		
DATE BOARDED	2002/07/16	
TYPE OF DISCHARGE	UNCHAR	
DATE OF DISCHARGE	19800514	
DISCHARGE AUTHORITY	AR 635-200, ch 14 	
DISCHARGE REASON	A62.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.