IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150003934 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 an upgrade of his undesirable discharge. 2. The applicant states that he was told his discharge would be upgraded within three years. He has not received the upgraded discharge. 3. The applicant did not provide any additional supporting documentation. 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 was inducted on 13 September 1966. He did not complete training and he was not awarded a military occupational specialty (MOS). 3. A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service shows he received an undesirable discharge under the provisions of Army Regulation (AR) 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) on 1 May 1967. He had completed 3 months and 9 days of total active duty service. Time lost is recorded as totaling 131 days. 4. He enlisted in the Regular Army (RA) on 4 January 1971. He did not complete training and was not awarded a MOS. 5. His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 22 February 1971 for being absent without authority (AWOL) from 15 February to 21 February 1971. 6. On 18 January 1972, the Assistant Adjutant, Personnel Control Facility (PCF), Fort Dix, New Jersey, notified the applicant of his intention to separate him from the service under the provisions of AR 635-206 (Personnel Separations – Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)) because of fraudulent entry. 7. The applicant consulted with counsel and elected to waive his rights. He also indicated he did not desire to submit a statement in his own behalf. 8. A 1st Indorsement, Headquarters Department of the Army, Washington, DC, dated 29 June 1972 notified the Commander, PCF, Fort Dix, NJ, that an investigation conducted at that headquarters, along with a report from the Federal Bureau of Investigation, had established that since the applicant had concealed his prior military service, his current enlistment was fraudulent within the purview of paragraph 20, Section V, AR 635-206. 9. On 1 July 1972, the PCF Commander recommended the applicant be discharged for fraudulent entry and issued an undesirable discharge. 10. The Brigade Commander recommended approval of the separation with issuance of an Undesirable Discharge Certificate. 11. On 20 July 1972, the appropriate authority approved the recommendation and directed that he be issued an Undesirable Discharge Certificate. 12. Accordingly, the applicant was discharged under conditions other than honorable on 4 August 1972. He had completed 6 months and 3 days of net active duty service during the period covered by that DD Form 214. Time lost is recorded as 393 days. 13. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). An undesirable discharge was normally considered appropriate. 14. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. The applicant's commander initiated a second separation because an investigation had established that the applicant had concealed his prior military service and his subsequent enlistment was fraudulent within the purview of AR 635-206. 2. The applicant's administrative separations were accomplished in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharges directed and the narrative reason were therefore appropriate and equitable. 3. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 4. In view of the above, the applicant's request should be denied. 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 that 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) AR20110020137 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003934 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1