MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 March 2002  
	DOCKET NUMBER:   AR2001063032

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Thomas Lanyi		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:  In effect, that his narrative reason for separation be changed.  

APPLICANT STATES:  In effect, that the recruiter fraudulently enlisted him in the Army.  He contends that he informed the recruiter of his prior civil record; however, the recruiter instructed him to not reveal this information, so he did not. He contends that the narrative reason for separation is in error and that the allegations are false and misleading.  In support of his application, he submits a letter of explanation, dated 10 September 2001.   

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

Item 40 (Involvement with Police or Judicial Authorities) on the applicant’s DD Form 1966/4 (Application for Enlistment - Armed Forces of the United States), dated 6 April 1977, shows the applicant answered “No” to item 40a (Have you ever been arrested, charged, cited or held by Federal, State, or other law enforcement or juvenile authorities regardless of whether the citation or charge was dropped or dismissed or you were found not guilty?).

His DD Form 1966/4 also shows the applicant answered “No” in item 40b (As a result of being arrested, charged, cited or held by law enforcement or juvenile authorities, have you ever been convicted, fined by or forfeited bond to a Federal, State, or other judicial authority or adjudicated a youthful offender or juvenile delinquent (regardless of whether the record in your case has been “sealed” or otherwise stricken from the court record)?).    

The applicant enlisted in the Army on 25 April 1977 for a period of 3 years.  

A background investigation revealed that the applicant concealed prior civil convictions of driving while under the influence in January 1976 and shooting with the intent to kill, wound, or maim in August 1973.  

On 9 December 1977, the applicant was released from custody and control of the Army.

The applicant’s DD Form 214 with an effective date of 9 December 1977 shows that he was released from military service under the provisions of Army Regulation 635-200, chapter 14, for fraudulent entry (recruiter connivance).  The specific incident of fraudulent entry was concealment of conviction by civil court.  The applicant’s enlistment contract was voided and the time served during the period of voided service was not creditable for promotion or longevity.   

Item 9c (Authority and Reason) on the applicant’s DD Form 214 (Report of Separation from Active Duty) shows the entry, “CHAP 14 AR 635-200 SPD YKG” [Chapter 14 Army Regulation 635-200 Separation Program Designator YKG].  
Item 27 (Remarks) on the applicant’s DD Form 214 shows the entry, “Misconduct-fraudulent entry.”

Army Regulation 635-5-1 (Separation Program Designator Codes), in effect at the time, states the reason for discharge based on separation code “YKG” is “Misconduct - fraudulent entry” and the regulatory authority is Section II, chapter 14, Army Regulation 635-200. 

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation provided, in pertinent part, for the separation of personnel for misconduct - fraudulent entry due to concealment of conviction by civil court.  The regulation also provided, in pertinent part, that the separation authority would void the fraudulent entry by issuing orders releasing the member from Army control for fraudulent entry in all cases involving alleged or verified connivance by recruiting officials.  The purpose was to preserve the value of honorable service, preclude unmerited award of honorable discharges to individuals who, in many cases, would not be in the Army had their disqualifications been known at enlistment/reenlistment.   

Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.

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 Board considered the applicant’s contentions that his narrative reason for separation is in error and that the allegations are false and misleading.  However, evidence of record shows the applicant procured enlistment in the Army by concealing prior civil convictions on his application for enlistment.  

2.  The applicant’s contention that he was fraudulently enlisted in the Army by his recruiter is supported by the evidence of record.  Evidence of record shows that the applicant was discharged for fraudulent entry (recruiter connivance).  

3.  The Board also considered the applicant’s request that his narrative reason for separation be changed.  However, the governing regulation in effect at the time states that the reason for discharge based on separation code “YKG” is “Misconduct – fraudulent entry” and the regulatory authority is Army Regulation 635-200, chapter 14.  Therefore, there is no basis for granting the applicant’s request.

4.  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 this requirement.

5.  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

FNE____  LE______  TL______  DENY APPLICATION

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

INDEX

CASE ID	AR2001063032	
SUFFIX		
RECON		
DATE BOARDED	20020328	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	19771209	
DISCHARGE AUTHORITY	635-200 Chapter 14	
DISCHARGE REASON	Fraudulent entry (recruiter connivance)	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200 (Narrative Reason)	
2.		
3.		
4.		
5.		
6.