MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            25 July 2000                  
	DOCKET NUMBER:   AR1999033856

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Correction of his DD Form 214 (Report of Separation from Active Duty) to show the type of separation in item 9a and to show his years of service in item 18.

APPLICANT STATES:  That he is unable to file for Veterans Administration (VA) benefits without the type of discharge and the years of service known.  He provides a copy of his DD Form 214 in support of his application.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Regular Army on 14 September 1976 for a period of 3 years.  

The applicant’s service personnel records contained the results of an Entrance National Agency Check (ENTNAC), dated 1 November 1976, which revealed he was convicted on 19 February 1976 of possession of marijuana.  He was sentenced to 12 months probation and fined $125.

The applicant’s DD Form 1966 (Application for Enlistment-Armed Forces of the United States) shows he failed to disclose his arrest or conviction in block 40b (involvement with police or judicial authorities).

The applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for fraudulent entry.  The unit commander based his recommendation for separation on the applicant’s concealment of conviction by civil court and recruiter connivance.  The applicant acknowledged receipt of the notification on 19 January 1977.  On 20 January 1977, the unit commander recommended that the applicant’s enlistment be voided due to recruiter connivance.  

On 27 January 1977, the separation authority directed that the applicant’s enlistment be voided under the provisions of Army Regulation 635-200, chapter 14-4d (as set forth in MILPERCEN Message DAPC-EPA-A 302228Z March 1976), for fraudulent entry.  As a result, the applicant was discharged on 31 January 1977 under the provisions of Army Regulation 635-200, chapter 14, for misconduct – fraudulent entry.  

Item 9a (Type of Separation ) of the applicant’s DD Form 214 shows the entry “RELEASE FROM MILITARY SERVICE”.  Item 27 (Remarks) shows “time served during period of voided service is not creditable for promotion or longevity, and to record successful completion of BCT, AIT and other in-service training.”  His DD Form 214 does not show any record of service in item 18.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct. Paragraph 14-5(1) states that the commander exercising general court-martial jurisdiction will void the fraudulent entry by issuing orders releasing the member from Army control for fraudulent entry.  The regulation also states that the commanders indicated above are authorized to void fraudulent enlistments or reenlistments when it has been determined that the fraud was aided by a recruiting official.  If such action by a recruiting official is verified, voidance is mandatory.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was released from military service under the provisions of Army Regulation 635-200, chapter 14, for misconduct – fraudulent entry.  In accordance with regulation then in effect, instances of fraudulent entry aided by a recruiting official required commanders to void those fraudulent enlistments.

2.  In the applicant’s case, it was determined that he fraudulently enlisted with the assistance of a recruiting official.  Therefore, the applicant’s enlistment and period of service were voided.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

TSK____  SK______  JHK_____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999033856	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000725	
TYPE OF DISCHARGE	NA	
DATE OF DISCHARGE	19770131	
DISCHARGE AUTHORITY	AR635-200,chapter 14	
DISCHARGE REASON	Misconduct – fraudulent entry 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.