IN THE CASE OF: BOARD DATE: 3 December 2015 DOCKET NUMBER: AR20150004224 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, that he be reissued a DD Form 214 (Report of Separation from Active Duty) for the period ending 12 December 1974 to show he served in the Regular Army (RA) on active duty rather than in the U. S. Army Reserve (USAR), that the entry “misconduct – fraudulent entry” be removed from his DD Form 214, and that he be issued an honorable discharge (HD). 2. The applicant states, in effect: a. He served 122 days of active duty service in the RA that is not reflected on his DD Form 214 or anywhere else in his record. b. This error or oversight has denied him the most basic of benefits from the Department of Veterans Affairs (VA) for over 40 years. c. To his knowledge, he never enlisted in the USAR. He enlisted on 18 July 1974 in the RA and reported for active duty service on 12 August 1974. d. The Army stated he was discharged was due to misconduct - fraudulent entry, and it is wrong. He never deceived the Army regarding his prior military service in the Marine Corps. His recruiter was aware of his former service and the type of discharge he received (under conditions other than honorable (OTH)). His recruiter stated that as long as he had not received a bad conduct discharge or a dishonorable discharge, he could enlist in the Army. 3. The applicant provides: * a self-authored letter * DD Form 214 * DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) * DA Form 2496 (Disposition Form) * Special Orders Number 161 dated 12 August 1974 * letters from Company C, 13th Battalion, 4th Training Brigade, U.S. Army Armor Center, Fort Knox, KY dated 29 October 1974 * Records Inventory Checklist dated 9 December 1974 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. On 7 November 1972, the applicant enlisted in the U. S. Marine Corps (USMC). 3. On 31 May 1974, he was discharged from USMC under conditions OTH and received a reenlistment code of RE-4 (not recommended for reenlistment). 4. On 13 July 1974, the applicant submitted a DA Form 3286 (Statements for Enlistment) for enlistment in the RA. In Part II (Statement of Law Violations and Previous Conditions), Number (2), it states, “Have you ever been rejected for enlistment…or been discharged from previous service under OTH conditions, under Personnel Security Regulations, or by reason of unsuitability, or undesirable habits or traits of character, or for medical reasons?” to which he responded “No.” 5. The applicant’s DA Form 3286-32R (Statements for Enlistment Delayed Entry Program (DEP)), dated 18 July 1974, shows he acknowledged that his enlistment in the USAR obligated him to a total of 6 years of service in the Armed Forces of the U.S., including service in the Reserve Components, unless sooner discharged by proper authority. He would be assigned to the USAR Control Group (Delayed Entry), during which time he would be in a non-pay status, and would not be authorized to participate in any Reserve training. 6. On 11 August 1974 he was discharged from the DEP, and on 12 August 1974 he enlisted in the RA for a period of 3 years. 7. On 12 December 1974, the applicant was discharged and given a characterization of service of under honorable conditions due to misconduct – fraudulent entry, since he failed to disclose he received an OTH while serving in the USMC. His DD Form 214 shows: * Item 5 (Department, Component and Branch or Class) – “ARMY RA” * item 18 – (Record of Service) o (a) Net Active Service This Period - “00 00 00” o (b) Prior Active Service - “01 06 25” o (c) Total Active Service - “01 06 25” o (d) Prior Inactive Service – “00 00 10” o (e) Total Service For Pay – “01 07-05” * item 27 (Remarks) – “Misconduct – fraudulent entry” 8. The applicant provided a copy of his DD Form 214 with an ending date of 12 December 1974, which he states incorrectly shows he entered the USAR on 12 August 1974, when he, in fact, was in the RA. He provided a copy of his DD Form 4, DA Form 2496, Records Inventory Checklist, and Special Orders Number 161 that shows he enlisted in the RA vice the USAR with an effective date of 18 July 1974. 9. The version of Army Regulation 635-200 in effect at the time states the following: a. Fraudulent entry is 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.? b. Commanders will determine if the information is, in fact, disqualifying. In each instance in which information previously concealed by an enlistee is revealed which gives rise to the suspicion that the enlistee fraudulently enlisted/reenlisted by a deliberate material misrepresentation, omission, or concealment as to his qualifications for enlistment, commanders must evaluate the newly revealed information in light of the criteria established in Army Regulation 601-210 to determine whether the newly discovered information, if true, would have disqualified the individual under Army Regulation 601-210. If the disqualification was waivable, but was not, in fact, waived, it is a disqualification. c. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant was discharged from the USMC on 31 May 1974 and he received an OTH discharge. 2. On 13 July 1974, he enlisted in the DEP, and on 18 July 1974 he entered the RA; however, he failed to disclose that he received an OTH discharge from the USMC in May of 1974. Therefore, he was separated from the RA after 4 months of active duty service with a general discharge (GD). 3. The applicant’s DD Form 214 for the period ending on 12 December 1974 shows he was in the RA and not the USAR. 4. Although the applicant states his Army recruiter was aware of his OTH discharge from the USMC and informed he was allowed to enter the Army, he failed to provide any documentary evidence to substantiate his claim. 5. The DA Form 3286 dated 13 July 1974 shows that applicant knew he had an OTH discharge from the USMC, yet still answered “No” to the question, have you been discharged from previous service under OTH conditions. Thus, the available evidence supports the characterization of service he received. 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) AR20130009180 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004224 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1