BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20160010860 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 DATE6 July 2017 DOCKET NUMBER: AR20160010860 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: 6 July 2017 DOCKET NUMBER: AR20160010860 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 character of service from under other than honorable conditions to honorable. 2. He states he made a mistake and he is sorry. He states we are all human and we all make mistakes in life. He offers he has changed and has served his community as an emergency medical technician with the rescue squad for the past 20 years. 3. He provides a self-authored statement. 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 26 November 1968, the applicant enlisted in the U.S. Marine Corps (USMC). He served 1 year, 3 months, and 7 days and he was discharged under honorable conditions on 2 March 1970. 3. On 1 December 1971, he completed a DD Form 398 (Statement of Personal History) indicating he had no previous service in the military. 4. On 3 December 1971, he enlisted in the Regular Army. 5. His disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 25 January 1972 for being absent without authority from on or about 24 to 25 January 1972. 6. On 28 February 1972, the Assistant Adjutant General (AG) informed the company commander that based on the applicant's enlistment record, this headquarters was contemplating separating him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) due to concealment of his prior service in the USMC and subsequent general discharge. 7. On 28 March 1972, the AG informed the Commanding General, U.S. Army Training Center, Infantry, Fort Jackson, SC, that based on a report from the Federal Bureau of Investigation, the USMC and RA individual were the same person. The AG explained: a. The applicant enlisted in the USMC on 26 November 1968 and he was discharged on 2 March 1970, under honorable conditions with a reentry code of "4." b. The applicant enlisted in the Regular Army on 3 December 1971, claiming no prior military service. c. Since the applicant's prior service presented a bar to his reenlistment, his current enlistment was fraudulent within the purview of Army Regulation 635-206. 8. On 6 April 1972, the company commander recommended approval of the applicant's elimination action. He stated the applicant’s fraudulent enlistment investigation was confirmed. Additionally, his attitude and action indicated an inability to adjust to military life and authority. Although he was counseled on numerous occasions about his attitude, he remained unaffected. He had a poor record in the unit and had received a field-grade Article 15 for being absent without leave. The applicant constantly complained and occasionally shirked his duties as a Soldier. He opined the applicant could not be rehabilitated and recommended the issuance of an Undesirable Discharge Certificate. 9. On 26 April 1972, the applicant waived his right for consideration of his case by a board of officers or appearance before a board of officers. Additionally, he indicated he would not submit a statement in his own behalf. He understood that as a result of the issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life. 10. On an unknown date, the separation authority approved the applicant's separation and directed the issuance of an Undesirable Discharge Certificate. 11. 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 with a character of service listed as under other than honorable conditions. He completed 4 months and 19 days of active service during this period. 12. There is no indication he applied to the Army Discharge Review Board for a review of his discharge within that board's 15-years statute of limitations. REFERENCES: 1. Army Regulation 635-206, in effect at that time, set forth the authority for the separation of enlisted personnel for misconduct, including fraudulent entry. Paragraph 13g established policy and prescribed procedures for processing fraudulent entry cases and provided for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the service. Section II pertained to incidents of fraudulent entry. It stated fraudulent entry was the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known might have resulted in rejection. Any incident that met the foregoing could be cause for discharge for fraudulent entry. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. 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. 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: 1. The applicant argues, in effect, that his discharge should be upgraded because he has been a good citizen since he was discharged. He has served as an emergency medical technician for the past 20 years. The fact that the applicant has been a good citizen and has been supporting his community is commendable. However, good post-service conduct alone is not a basis for upgrading his discharge. 2. The evidence of record shows the applicant served in the USMC and received a general discharge prior to enlisting in the Regular Army, which he failed to disclose. Accordingly, his chain of command initiated action to discharge him for fraudulent enlistment. 3. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights. The type of discharge directed and the reasons were appropriate considering all the facts of the case. 4. Based on his record of misconduct and his fraudulent enlistment, it appears his service did not meet the criteria for an honorable or a general character of service as reflected in Army Regulation 635-200. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160010860 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160010860 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2