MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           16 September 2003
		DOCKET NUMBER:  AR2003087910

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred M. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES:  That at the time he enlisted, jobs were hard to find and he lied when asked if he was married.  He goes on to state that he completed his training and was transferred to Germany.  While in Germany his baby died and his wife requested he come home on emergency leave.  It was at this time that it was discovered that he had lied and he was discharged for fraudulent enlistment because he had concealed his dependents.  He goes on to state that he admits he lied, but everyone has at some point and all he wants is to be buried in a National Cemetery.  In support of his application he submits a copy of his report of separation (DD Form 214).

EVIDENCE OF RECORD:  The applicant's military records were destroyed in the 1973 fire at the National Personnel Records Center at St. Louis, Missouri, which destroyed millions of service records.  However, the DD Form 214 provided by the applicant shows:

He enlisted in Knoxville, Tennessee, at the age of 21, on 6 April 1956, for a period of 3 years.  He completed his training as a pioneer, was advanced to the pay grade of E-2 on 6 August 1956 and was transferred to the 814th Engineer Company (Float Bridge) in Germany.

On 11 January 1957, just 3 months and 8 days after his arrival in Germany, the applicant was returned to Fort Dix, New Jersey, where he was discharged under other than honorable conditions under the provisions of Army Regulation       635-206, for misconduct - fraudulent entry (due to concealment of his dependents).  He had served 8 months and 6 days of total active service.

There is no evidence available to show if the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's     15-year statute of limitations.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Section I of the regulation provided, in pertinent part, that upon discovery of concealment of information at enlistment, commanders will process the individual for discharge.  However, if the individual's general qualifications are such that he is an asset to the service, the unit commander may request to waive the right to discharge him for fraudulent enlistment.  Personnel who were not granted a waiver were processed for discharge and were required to be issued an Undesirable Discharge Certificate. 

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 the absence of evidence to the contrary, it must be presumed that the applicant's administrative discharge was accomplished in compliance with applicable regulations with no violations or procedural errors, which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, the applicant's commander had the latitude to request that his discharge be waived if he thought it appropriate to do so.  Therefore, because the facts and circumstances surrounding his discharge are not available for review by the Board, the applicant's explanation in and of itself is not sufficiently mitigating to warrant an upgrade of his discharge.

4.  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.

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

____fe __  __kh____  __mm___  DENY APPLICATION

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

INDEX

CASE ID	AR2003087910	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/09/16	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1957/01/11	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	Misconduct/fraud entry	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  644	144.6200/a62.00	
2.		
3.		
4.		
5.		
6.