IN THE CASE OF: BOARD DATE: 26 February 2014 DOCKET NUMBER: AR20130010483 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his DD Form 214 (Report of Separation from Active Duty) to show his character of service as under honorable conditions (general) and completion of 2 years of military service. 2. The applicant states his discharge did not credit him with 2 years of military service or a characterization of service. 3. The applicant provides: * DA Form 2-1 (Personnel Qualification Record – Part II), pages 2, 3, and 4 * Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders 67-82, dated 6 April 1977 * letter from the Department of Veterans Affairs, Berks County, PA, dated 1 July 2013 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant completed a DD Form 1966 (Application for Enlistment – Armed Forces of the United States) on 13 November 1975 prior to his enlistment in the Regular Army. He indicated in item 37 (Character and Social Adjustment) and item 40 (Involvement with Police or Judicial Authorities) that: a. He had never been involved in the use, purchase, possession or sale of marijuana, lysergic acid diethylamide, or any harmful or habit-forming drugs and/or chemicals except as prescribed by a licensed physician. b. He had never been arrested, charged, cited, or held by Federal, State, or other law enforcement or juvenile authorities, regardless of whether the citation or charge was dropped or dismissed or he was found not guilty. c. He had never, as a result of being arrested, charged, cited, or held by law enforcement or juvenile authorities, been convicted, fined by, or forfeited bond to a Federal, State, or other judicial authority or adjudicated a youthful offender or juvenile delinquent, regardless of whether the record in his case had been "sealed" or otherwise stricken from the court record. d. He had never been detained, held in, or served time in any jail, prison, or reform or industrial school or any juvenile facility or institution under the jurisdiction of any city, county, State, Federal, or foreign country. e. He had never been awarded and he was not currently under a suspended sentence, parole, or probation awaiting any action on charges against him. 3. He enlisted in the Regular Army on 21 November 1975 and was assigned to the 101st Airborne Division, Fort Campbell, KY, on 12 April 1976. 4. His record contains a DA Form 2496-1 (Disposition Form), dated 23 March 1977, issued by the Chief of Personnel Security who stated the results of the applicant's personnel security investigation were furnished for review and possible elimination consideration in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 or paragraph 5-38, as deemed appropriate. Additionally, the attached personnel security investigation – DD Form 1584 (National Agency Check Request)/Entrance National Agency Check (ENTNAC) – discloses an arrest, conviction, or unfavorable prior military service record which may not have been revealed for enlistment or considered for waiver requirements. 5. The Personnel Actions Branch Assistant Chief sent a letter to the Sheriff's Office in Buffalo, NY, dated 12 April 1977, wherein he indicated his headquarters had received information indicating the applicant had a record of criminal law violations (loitering and possession or sale of controlled substances) at the time of his enlistment. He requested that the Sheriff's office advise his command of the final disposition of the charges and whether the applicant had been convicted of the charges. His records did not contain a written response from the Sheriff's office. However, there was a typed statement at the bottom of this letter indicating the records for the referenced charges were sealed by a judge on 26 June 1975. 6. His records contain a DA Form 2496, dated 1 August 1977, subject: Request for Review, which shows: a. On 1 August 1977, the Personnel Actions Branch Assistant Chief forwarded information to the Administrative Law Division Chief and asked that he determine whether the information was legally sufficient to process the applicant for administrative separation in accordance with chapter 14 of Army Regulation 635-200. b. On 3 August 1977, the Chief of the Administrative Law Division responded by stating the information he reviewed was legally sufficient to process the applicant for administrative separation in accordance with paragraph 5-38 of Army Regulation 635-200 because the applicant failed to list his felony offense of the sale of a controlled substance on his DD Form 1966. 7. On 8 August 1977, the Personnel Actions Branch Assistant Chief notified the applicant's commander that the applicant was suspected of fraudulent entry in the U.S. Army. The memorandum further stated: a. A comparison of the applicant's ENTNAC and the statements he made on his enlistment document (DD Form 1966) revealed the concealment of possible disqualifying factors. Action must be immediately initiated to void the enlistment, waive the fraudulent entry and retain the applicant, or discharge the applicant under the provisions of Army Regulation 635-200, paragraph 3-38 or chapter 14. b. The immediate commander was directed to advise the applicant of his rights, afford him the opportunity to consult with defense counsel, and afford him the opportunity to make a sworn statement concerning possible recruiter connivance in the fraudulent entry. This commander was informed that if the applicant declined to make a statement or indicated that a recruiter assisted him in perpetrating fraud, the enlistment must be voided. 8. His records contain a sworn statement, dated 18 August 1977, wherein he stated, in effect: a. He went to a recruiting station in Ohio on or about 1 November 1975 and informed the recruiter, Sergeant First Class (SFC) A____, that he had been convicted of loitering "for the purpose of drugs" on 11 May 1975 and was still on probation. SFC A____ told him this was not a problem and SFC A____ could get him off probation if he was serious about joining the Army. b. On 10 November 1975, he went to what is currently known as a Military Entrance Processing Station (MEPS). SFC A____ told him not to worry about his conviction and not to mention it to anyone at the MEPS. c. The MEPS counselor, SFC R____ P____, asked him while preparing his paperwork if he had ever been convicted of a crime and the applicant responded that he had been convicted of a class B misdemeanor. Next SFC R____ P____ asked the applicant why the conviction was not listed in the paperwork SFC A____ filled out and the applicant responded that "SFC A____ said not to worry about it." Upon hearing this, SFC R____ P____ informed him he would have to get a copy of his record and bring it into the MEPS. The applicant later provided a copy of his record and SFC R____ P____ recorded the information in his military records. d. In March 1977, he had a records review with a specialist five (SP5). During the review he saw the SP5 erase the charges listed in his record. The SP5 told him the charges were no longer required to be maintained in his records. 9. His records contain a DA Form 2496, dated 25 August 1977, wherein the applicant stated/acknowledged he had been advised that Army regulations required the voidance of his enlistment contract. He was further advised that because of this action, the period of active duty he had served on his current enlistment was not creditable and he would not receive veterans' benefits or a discharge certificate. He would be permitted to keep any pay and allowances he had already received and to execute a new enlistment contract if he was qualified; however, he indicated he did not desire immediate enlistment. 10. His records show that after further investigation and a legal review, there was sufficient evidence of record to justify voiding his enlistment. 11. On 27 September 1977, the separation authority voided the applicant's fraudulent entry and directed his release from the control of the Army in accordance with Army Regulation 635-200, paragraph 14-4c. 12. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from military control on 30 September 1977 in accordance with Army Regulation 635-200, chapter 14, by reason of fraudulent entry. He did not receive credit for his period of active service or a characterization of service. 13. Army Regulation 635-200, chapter 14, in effect at the time, stated fraudulent entry was the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This included all conditions that would have been disqualifying without a waiver. 14. Army Regulation 635-5 (Separation Documents) serves as the authority for preparation of the DD Form 214. The regulation in effect at the time provided that individuals who had their enlistments voided by reason of fraudulent enlistment would receive no credit for service nor would their service be characterized. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions that his character of service should be shown as under honorable conditions (general) and he should receive credit for 2 years of active service lacks merit. 2. The evidence of record clearly shows the applicant was released and his enlistment contract was voided because he concealed his civil conviction. Additionally, his commander briefed him and he acknowledged that he understood he would not receive credit for his service or a characterization of service. 3. In accordance with regulations then in effect, instances of fraudulent entry due to the concealment of a conviction by a civil court required commanders to void the fraudulent enlistment contract and release the member from Army control. Therefore, the applicant's enlistment was properly voided and a DD Form 214 was issued releasing him from the control of the Army. Since the applicant's enlistment was voided, he did not receive credit for his service or a characterization of service. 4. In view of the foregoing evidence, there is no basis to grant the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ___X__ _ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ X ______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20130010483 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130010483 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1