IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016794 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016794 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. IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016794 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 correction of his under honorable conditions discharge to honorable discharge. 2. The applicant states he completed advanced individual training and basic training (BT) as a very good Soldier. He did not tell them about his prior enlistment because he was scared they would not accept him. He really wanted to be in the military. He thinks that he was unjustly not allowed to continue as a Soldier. 3. The applicant provides no additional documents to support his application. 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. Prior to the period of service under review, the applicant enlisted in the New York Army National Guard and served in an initial active duty training status from 3 April 1977 until he was discharged for failure to meet established physical standards (no disability) on 2 May 1977. 3. On 14 March 1983, the applicant completed a DD Form 1966 (Application for Enlistment – Armed Forces of the United States), requesting to join the United States Army. Item 24 (Military Service) of this form asked “Are you now or have you ever been in any regular or reserve branch of the Armed Forces or in the Army National Guard or in the Air National Guard?" He marked “No.” 4. On 14 March 1983, he completed a Standard Form 93 (Report of Medical History). In item 11 (Have you ever had or have you now…foot trouble) the applicant marked “No.” In Item 23 (Have you ever been discharged from military service because of physical, mental, or other reasons?), the applicant marked “No.” 5. On 14 March 1983, a Standard Form 88 (Report of Medical Examination) was completed and signed by a medical doctor indicating the applicant was qualified for enlistment. 6. He entered active duty this period on 30 March 1983. 7. On 25 April 1983, the applicant was questioned by an investigating officer about possible fraudulent entry. A DA Form 2823 (Sworn Statement) was signed by the applicant and he stated, in summary: * he was prior service at Fort Jackson, SC, from 2 April 1977 to 3 May 1977 * his discharge was honorable for medical reasons * he had problems with his feet * he did not know he would have the same problems * he did not start having problems with his feet until the third week of BT * his feet hurt when he marched or ran * he didn't want to stay because he was having the same problems 8. On 22 July 1983, the applicant’s commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 7 (Fraudulent Entry). The applicant was advised of his rights and of the separation procedures involved. The commander also informed him that he was recommending he receive a general discharge. 9. On 25 July 1983, the applicant consulted with legal counsel and he was advised of the rights available to him. a. He acknowledged that he understood he was being considered for separation for misconduct by fraudulent entry. b. He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. c. He was also advised that in the event that an under other than honorable conditions discharge was issued to him, he might be: • deprived of many or all Army benefits • ineligible for many or all benefits administered by the Veterans Administration • deprived of his rights and benefits as a veteran under both Federal and State laws d. The applicant also acknowledged he understood that if he received a discharge/character of service that was less than honorable he could make application to the Army Discharge Review Board or the ABCMR for upgrading his discharge. However, an act of consideration by either board did not imply that his discharge would be upgraded. 10. The appropriate authority approved the separation recommendation with the issuance of a general discharge. 11. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 9 August 1983, based on fraudulent entry, with an under honorable conditions character of service. He had completed 4 months and 10 days of net active service this period. 12. A review of his military personnel records failed to reveal evidence that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel from the Army. a. Chapter 7 provides the authority, criteria, and procedures for the separation of Soldiers because of minority, erroneous enlistment, induction or extension of enlistment, defective enlistment agreement, and fraudulent entry. b. Section III, paragraph 7-17, in pertinent part, shows fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information. If this information had been known and considered by the Army at the time of enlistment or reenlistment, rejection might have resulted. This includes all disqualifying information requiring a waiver. c. Chapter 3 (Character of Service/Description of Separation), in pertinent part, shows in paragraph 3-7 (Types of administrative discharges/character of service): * 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. This paragraph also provides that only the honorable characterization may be awarded a Soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under the specific reason for separation, unless an entry level status separation (uncharacterized) is warranted * A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued for a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization DISCUSSION: 1. The evidence of record shows the applicant intentionally concealed and withheld information about his prior service. In addition, he admits in his application that he concealed his prior enlistment because he was scared he would not be accepted into the military. 2. The applicant's administrative separation based on fraudulent entry was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason therefore were appropriate considering all the facts of the case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016794 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016794 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2