BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160001747 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 BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160001747 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. BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160001747 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 reconsideration of his previous request for an upgrade of his discharge under other than honorable conditions to honorable. 2. The applicant states the induction board records are incorrect and his initial request to the Army Board for Correction of Military Records (ABCMR) did not consider all of the pertinent evidence that was available to them. 3. The applicant provides: * Department of Veterans Affairs (VA) Form 21-0958 (Notice of Disagreement), dated 20 October 2015 (page 4 only) * list of exhibits submitted as new evidence – * ABCMR Memorandum of Consideration, dated 16 November 1983 * Police Records * Court Records * DD Form 47 (Record of Induction) * Army Medical Records * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 23 August 1956 * Military Personnel Records * Affidavit, dated 22 October 2013 * VA letters * Army Review Boards Agency (ARBA) letters * Post-Service Medical Records and Reports CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC83-10348 on 16 November 1983. 2. Police records show that on 3 November 1955, a warrant was filed in Indiana for the applicant's arrest for grand larceny. He was apprehended on 7 November 1955 in Ohio and he was awaiting extradition to Indiana. His attorney filed a writ of habeas corpus (court order to a person or agency holding someone in custody (such as a warden) to deliver the imprisoned individual to the court issuing the order and to show a valid reason for that person's detention) contending that he was being held in the Cleveland County Jail illegally awaiting extradition to Indiana. Court records show on 30 December 1955, the applicant returned to the State of Indiana and surrendered for an appearance in court. He posted bond in the amount of $2,000.00 for a court appearance to answer for the charge of grand larceny. The writ of habeas corpus was granted on 30 December 1955. 3. Police records show the applicant was arrested by the Toledo, Ohio Police Department on 10 August 1956 on the charge of practicing "trick to defraud." He was convicted on 13 August 1956 and sentenced to 30 days in confinement and fined $50.00 and (court) costs. The 30 days in confinement and fine were suspended by the judge. The available records also show he was arrested on 16 November 1953 for swindling, 15 March 1954 for swindling, and 8 November 1955 for swindling and for being a fugitive. No further disposition for these arrests are available. 4. The applicant was inducted into the Army on 23 August 1956. At the time of induction, he completed a DD Form 47, item 14a (Convicted of Crime Other than Minor Traffic Violation) shows he placed an "X" in the "No" block. In item 14b (Now in Custody of the Law) shows he placed an "X" in the "No" block. 5. In October 1956, the court's prosecuting attorney filed a motion to nolle prosequi (no longer prosecute) citing the applicant's induction into the Army and the belief that it was in the best interest of society that he serve his "hitch" in the Army rather than be tried in the case for grand larceny. He also cited insufficient evidence to sustain a conviction as a basis for the motion. The motion to nolle prosequi was sustained by the court. 6. On 9 November 1956, the applicant was referred to Mental Hygiene Consultation Service by his commanding officer for psychiatric evaluation prior to possible administrative separation. The psychiatrist noted the applicant had been in trouble with the police, being arrested many times for professional gambling and larceny. The psychiatrist diagnosed him with chronic, severe antisocial personality, manifested by a long police record. He had a huge debt in ratio to income total, a history of attempts to actively manipulate people for his own gain from professional gambling to present attempts to get out of the Army. He was found to have no psychiatric disease present and no disqualifying mental or physical defects sufficient to warrant discharge for physical disability. The psychiatrist recommended separation under the provisions of Army Regulation 635-208 (Unfitness) or Army Regulation 635-209 (Inaptitude or Unsuitability), whichever the command deemed appropriate. 7. On 14 November 1956, the Assistant Adjutant notified the applicant's commanding officer that the applicant concealed the fact that he had been guilty of committing the offenses mentioned in section 14a and 14b of his DD Form 47. His commanding officer was provided a letter, dated 9 November 1956, verifying that the applicant did have a criminal record and that he was arrested on 10 August 1956. The applicant's commander was asked to provide information by indorsement indicating whether he desired the applicant to be retained in the military or discharged. 8. On 20 November 1956, the applicant was recommended for discharge under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct). The applicant's intermediate commanders concurred. 9. On 29 November 1956, the applicant was discharged due to fraudulent entry under the provisions of Army Regulation 635-206. His DD Form 214 shows he completed 3 months and 2 days of total active service and he had 7 days of excess leave. His service was characterized as under other than honorable conditions. 10. On 16 November 1983, the ABCMR denied the applicant's request for an upgrade of his discharge. 11. The applicant provided copies of: * his Army medical records showing his diagnoses and the treatment he received while in the Army * his post-service medical records showing his diagnoses and the treatment he received after his discharge from the Army * an ARBA letter, dated 5 December 2013, denying his request for reconsideration of the decision in ABCMR Docket Number AC83-10348 * a VA letter pertaining to a request for loan guaranty benefits * a VA letter informing him of the status of his previous request for reconsideration by the ABCMR * a VA letter responding to his inquiry dated 10 April 2015 12. He also provided an affidavit from a business partner stating he has personal knowledge of the facts pertaining to the events surrounding the matter of the applicant when he was inducted into the military. REFERENCES: 1. Army Regulation 635-206 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). Paragraph 33 provided that members would be considered for discharge when it was determined that one or more of the following applied: (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude. A discharge under other than honorable conditions was normally considered appropriate. 2. Army Regulation 635-200 (Enlisted Personnel Separations) 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 provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's contentions have been noted. His supporting evidence has been considered. 2. It appears the ABCMR considered all the pertinent facts and evidence during the previous consideration of his case. Police records show he was arrested on 10 August 1956 for practicing trick to defraud. He was convicted on 13 August 1956 and sentenced to 30 days in confinement and fined $50.00 and court costs. The 30 days in confinement and his fine were suspended by the judge. 3. The applicant was inducted into the Army on 23 August 1956, which was after his arrest and sentencing for practicing trick to defraud. In item 14a of his DD Form 47, he placed an "X" in the "No" block indicating he had never been convicted of a crime other than a minor traffic violation. 4. While the applicant was never convicted for grand larceny, his police record shows he was convicted for practicing trick to defraud before he completed his induction paperwork (DD Form 47). Based on the available evidence, it appears the applicant's entry into the Army was fraudulent. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001747 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001747 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2