ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 October 2019 DOCKET NUMBER: AR20170015474 APPLICANT REQUESTS: * correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to reflect he served in the Regular Army from 29 August 1972 to 6 March 1973 * Board appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he served in the Regular Army (RA) for 3 years. He shares he did not sign up for the National Guard. He states he was sworn in on 29 August 1972 and released on 6 March 1973 and adds he started basic training before 30 November 1972 at Fort Rucker, AL. The applicant states he was discharged because of a recruiter’s error. He hopes to get his DD Form 214 to reflect the correct dates. He shares he has never qualified for Department of Veterans Affairs (VA) benefit and adds he can’t sign up and get a military identification (ID) card. 3. A review of the applicant’s service record shows: a. His record was void of documentation showing he enlisted in the U.S. Armed Forces on 29 August 1972. His DD Form 4 (Enlistment Contract – Armed Forces of the Unites States), shows he enlisted in the Regular Army for 3 years on 30 November 1972. Item 11 (Enlisted/Reenlisted/Inducted) of his DD Form 4, shows this was his first enlistment. b. DA Form 20 (Enlisted Qualification Record), Item 11 (Enlisted, Inducted, Reenlisted, Extended, and/or OAD) shows he enlisted in the Regular Army on 30 November 1972 with a service expiration date of 29 November 1975. c. A notification (Form USAARMC FL 8178), dated 12 December 1972, provided by the Assistant Adjutant General (AG), informed the applicant’s leadership that information was received from federal officials reporting the applicant had a record of conviction by civil authorities from September 1968. d. On 24 January 1973, the applicant was notified by his immediate commander that he was recommended for board appearance to determine his discharge from the RA under the provisions of (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for fraudulent entry. e. His immediate commander recommended him for elimination from the service the same day with the reason for the action recommended as the applicant advised him he had a previous grand larceny conviction. f. The recommendation was endorsed by the applicant’s battalion commander on 14 February 1973 and his brigade commander on 21 February 1973. g. On 20 February 1973, the applicant acknowledged receipt of his commander’s notification. h. The recommendation was endorsed by the applicant’s brigade commander on 21 February 1973. i. On 23 February 1973, the approving authority ordered the applicant to be discharged from the RA under the provisions of AR 635-200, Chapter 14, for fraudulent entry. The approving authority also ordered the applicant to be issued a General Discharge Certificate. j. Special Orders Number 41, dated 1 March 1973, issued by Headquarters, U.S. Army Armor Center and Fort Knox, KY, discharged the applicant from active service, effective 6 March 1973. k. His DD Form 214 shows he was discharged under the provisions of AR 635-200, with SPN Code 280 for fraudulent entry and received a Under Honorable Conditions character of service. His DD Form 214 also shows in Item 17c (Date of Entry), the applicant entered active service on 30 November 1972 and was discharged on 6 March 1973. 4. By regulation, (AR 15-185 (ABCMR)) applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 5. By regulation (Army Regulation (AR) 635-5 (Separation Documents), in effect at the time, the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. The specific instructions for Item 12a state to enter the beginning date of the enlistment period or tour of AD for which a DD Form 214 was not issued. 6. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 7. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 14 for concealment of a civil conviction. An under other than honorable is an appropriate and authorized character of service for this chapter. However, the separation authority may direct a general discharge if such is merited by the member’s overall record. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. Evidence of record shows the date he entered military service as shown on his DD Form 4 was listed on his DD Form 214. The applicant did not provide evidence in support of his claim showing there is an erroneous date listed on his DD Form 4. Based on a preponderance of evidence, the Board agreed there was no error or injustice in this case. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 1/23/2020 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-5, in effect at the time, the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. The specific instructions for Item 12a state to enter the beginning date of the enlistment period or tour of AD for which a DD Form 214 was not issued. 4. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 5. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 14 for concealment of a civil conviction. An under other than honorable is an appropriate and authorized character of service for this chapter. However, the separation authority may direct a general discharge if such is merited by the member’s overall record. //NOTHING FOLLOWS//