IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150010270 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 IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150010270 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. IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150010270 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 his under honorable conditions (general) discharge be upgraded to an honorable discharge. 2. The applicant states, in effect, that he informed an officer at the induction center that he had prior service and was informed the matter would be taken care of later. He had a nightmare while assigned to a holding company and the next day he was ordered to see a psychiatrist. He continued to see the psychiatrist once a week for three months and was eventually found unfit for duty. He continued to perform the duties of the night company runner working 12-14 hours per night. He was not allowed to go to therapy and he suffered a mental breakdown. He does not remember going absent without leave (AWOL) but does remember waking up in Spokane, WA, lost. He surrendered at Fairchild Air Force Base. He received an Article 15 for going AWOL. After one week of extra duty he tried to commit suicide and was hospitalized until he was discharged. 3. The applicant provides no 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 Regular Army on 20 December 1973. His DD Form 4 (Enlistment Contract-Armed Forces of the United States) does not list any prior service in item 49 (Prior Service). It shows the entry ?NA [not applicable].? 3. He was subsequently assigned to Fort Ord, CA, to complete his basic combat training (BCT). 4. He accumulated 6 days of lost time due to AWOL from 19 to 24 March 1974. 5. His military personnel record contains a memorandum, dated 5 April 1974, subject: Verification of Prior Service on [applicant], verifying he had enlisted on 2 July 1970 in the U.S. Marine Corps. In less than a month on 29 July 1970 he received a General Discharge for the Convenience of the Government with a reenlistment code (RE-Code) of 3P (Physical Disability). 6. He received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 28 April 1974 for disobeying a lawful order from a commissioned officer. 7. On 10 April 1974, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) paragraph 14-11, for misconduct-fraudulent enlistment. The commander stated the applicant performed in less than a creditable manner, was charged with AWOL, refused a lawful order, and took an overdose of aspirins. The applicant acknowledged receipt of the separation action taken against him on the same day. 8. On 24 April 1974, the separation authority approved the recommendation to discharge the applicant from service for providing false information on his enlistment contract concerning his prior service in the U.S. Marine Corps. The separation authority directed issuance of a General Discharge Certificate. 9. He was discharged on 6 May 1974 under the provisions of Army Regulation 635-200, chapter 14, misconduct-fraudulent entry, with an under honorable conditions characterization of service. He completed 4 months and 11days of total active service this period with 6 days of lost time. REFERENCES: 1. Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 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 that 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 which met the foregoing could be cause for discharge for fraudulent entry. All service performed under a fraudulent enlistment was considered null and void. 2. This same regulation further states in paragraph 3-7a 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. DISCUSSION: 1. The applicant requests his general discharge be upgraded to an honorable discharge. 2. He contends that he informed an officer at the induction center that he had prior service in the U.S. Marine Corps; unfortunately, his enlistment contract is void of any mention of prior service. At some point the Army sought and received verification of his prior service in the U.S. Marine Corps and determined that the applicant either omitted or concealed this information. He had been discharged with a reenlistment code of 3P. Given this information and the applicant’s repeated misconduct, his chain of command initiated action to discharge him for misconduct-fraudulent entry. 3. Lacking evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons were appropriate considering all the facts of the case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010270 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010270 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2