BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160002055 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: 29 August 2017 DOCKET NUMBER: AR20160002055 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: 29 August 2017 DOCKET NUMBER: AR20160002055 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 the characterization of his service from under honorable conditions (general) to honorable. 2. The applicant states, in effect, he received the punishment he deserved, he is sorry and requests forgiveness. He claims there is a world of opportunity; however, his under honorable conditions (general) discharge limits these opportunities. There are benefits he would like to apply for, but many require an honorable discharge. He is 67 years old and ashamed. His health is failing and he would like his discharge upgraded before he leaves this world. 3. The applicant provides no additional evidence. 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 enlisted in the U.S. Marine Corps (USMC) on 13 August 1968. On 24 September 1968, he was discharged from the USMC by reason of unsuitability and issued a General Discharge Certificate. 3. The applicant enlisted in the Regular Army on 12 November 1969. 4. His record contains a Mental Hygiene Consultation Service Certificate, which certifies the applicant received a psychiatric examination on 19 February 1970. The applicant's commanding officer referred him for screening and consultation concerning elimination from service for fraudulent entry. The medical official who conducted the screening found the applicant was not mentally ill and cleared him for action deemed appropriate by the command. 5. A letter from the Commandant of the USMC to the applicant's commander, dated 3 April 1970, states the USMC discharged the applicant under honorable conditions because an Aptitude Board found him unsuitable for USMC service. 6. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 6 May 1970 for, without authority, absenting himself from his unit on 4 May 1970. 7. On 15 May 1970, his immediate commander initiated separation action against the applicant for fraudulent entry. The applicant's immediate commander stated the applicant purposely concealed the fact that he had prior service. He also concealed the fact that he needed a waiver for his height. He refused to train in his military occupational specialty (MOS) of 11C (Indirect Fire Infantryman) and had performed all of his duties in a poor manner except when he had taken a personal interest in them. Whenever conditions exist which were not in his favor, his actions were that of an adolescent instead of the behavior of a grown man. If the applicant was to remain in service, his commander recommended he receive training in a non-combatant MOS. The applicant's commander recommended his elimination with a General Discharge Certificate due to fraudulent entry. 8. On 30 June 1970, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations–Discharge–Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)) because of fraudulent entry and he advised the applicant of his rights. The applicant acknowledged receipt the same day. 9. The applicant was afforded the opportunity to consult with counsel and he declined the opportunity. He was advised of the basis of the contemplated action to discharge him. He waived consideration of his case by a board of officers, waived personal appearance before such board, and elected not to submit a statement on his own behalf. He acknowledged that he understood as a result of the issuance of a discharge under honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life. 10. On 9 July 1970, his immediate commander initiated separation action against the applicant for fraudulent enlistment. The commander stated the applicant claimed on his enlistment contract that he had no prior service. A later check found the USMC discharged the applicant on 24 September 1968. The applicant's failure to mention his prior service warranted issuance of a General Discharge for fraudulent entry. 11. On 10 July 1970, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 and ordered the issuance of a General Discharge Certificate. Accordingly, the applicant was discharged on 17 July 1970. 12. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-206 as a result of fraudulent entry. He completed a total of 8 months and 6 days of creditable active military service with no time lost. 13. His service records do not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. 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). a. Paragraph 17 stated the unit commander would submit a recommendation for discharge by reason of fraudulent entry or retention through intermediate commanders to the commander exercising general court-martial authority upon discovery and after complete verification of any deliberate material misrepresentation, omission, or concealment of facts or conditions which, if known at the time, might have resulted in rejection. b. Paragraph 30 stated an individual discharged under this regulation would normally be issued an Undesirable Discharge Certificate. 2. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 1-9, provided that an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditional upon proper military behavior and proficient performance of duty during the member's current enlistment and current period of service. Where a member had served faithfully and performed to the best of his ability and had been cooperative and conscientious in doing his assigned tasks, he could be furnished with an honorable discharge. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 1-8 states the ABCMR reviews all applications that are properly before them to determine the existence of error or injustice, and directs or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR denies applications when the evidence does not adequately support the alleged error or injustice. b. Paragraph 2-9 states 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 Board acknowledges the applicant's request to, in effect, upgrade his general discharge in order to improve his eligibility for benefits. However, the ABCMR does not normally grant requests for the correction of records solely for the purpose of making the applicant eligible for veterans or other benefits. The Board decides every case individually based upon its merits when an applicant requests a correction to his military records. 2. The evidence shows the applicant fraudulently enlisted by concealing his prior service and discharge under honorable conditions from the USMC. The applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors, which would have jeopardized his rights. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge was normally undesirable. However, in his case, the separation authority determined a discharge under honorable conditions was warranted. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002055 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002055 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2