ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20180016771 APPLICANT REQUESTS: in effect, change the authority and reason for separation pertaining to his honorable discharge, on 11 November 1975. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 214 (Report of Separation from Active Duty) * Applicant's birth certificate * Applicant's Social Security (SSN) card * SSA (Social Security Administration) 2458 (Report of Confidential Social Security Benefit Information) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, it is his opinion his brother illegally used his SSN so he could enter the U.S. Air Force (USAF); his brother served from 1972 until 2015. a. The applicant entered the U.S. Army on 11 November 1975 at the Norfolk, Virginia recruiting station. During basic combat training (BCT), he became a squad leader and was later named the platoon guide; the Army was his home. On the day he was to finish BCT, his drill sergeant told him he would not be graduating; his drill sergeant did not give a reason. After his separation, he drifted from state to state with no purpose. b. In 1989, he returned to his hometown in Florida; he went to the Department of Veterans Affairs (VA) office to ask about his Veterans' status. The VA office told him he was ineligible for benefits because his enlistment was fraudulent; they were unable to offer any details about his alleged fraud. Due to his financial situation at the time, he could not get the help he needed to rectify the situation. c. From that point forward he drifted again; he became addicted to drugs and alcohol, and was in and out of correction facilities, eventually becoming homeless. He relocated from Florida to Pennsylvania, where he became physically ill. Someone from a homeless program there helped guide him back to mental and physical health; he is still in their program today. d. His caseworker asked if he had ever been in the military; he answered he had served in the Army and told his caseworker about the allegation of fraudulent enlistment. With his caseworker's help, he learned his brother, D__ J__ W__, born in 1951, had entered the USAF in 1972 using the applicant's SSN; they discovered this when they tried to register the applicant at the VA hospital. While in the Army in 1975, he was "inducted into the military after (his) brother," which caused him to be denied his right to serve his country. Under the Social Security Act, it is against the law to use someone else's SSN, or to give false information when applying for an SSN. The applicant asserts his brother willingly and knowingly violated this law. 3. The applicant provides documents showing his date of birth and SSN. 4. The applicant's service records show: a. He enlisted into the Regular Army on 10 August 1975 for a 2-year term. Orders assigned him to Fort Knox, Kentucky for BCT; he arrived on 17August 1973. b. On 4 September 1975, while in BCT, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for dereliction of duty by negligently failing to secure his M-16 rifle. c. On 24 September 1975, the applicant's BCT commander notified him in writing of his intent to separate him under the provisions of a Department of the Army message, dated 1 August 1975, Subject: Evaluation and Discharge of Enlistees before 180 Active Duty Days. The commander's action was based on the applicant's deficiencies in motivation, attitude, and self-discipline; the applicant had also failed to respond to counseling. The commander further advised the applicant that counsel (a commissioned officer other than the company commander) would be made available, if desired, and, if the separation action was approved, the applicant would be furnished an honorable discharge. d. The applicant acknowledged the notification, confirmed his desire to have counsel assist him, and did not elect to submit a statement in his own behalf. The bottom of the document showed a statement, made by the executive officer, in which the executive officer affirmed he had advised the applicant of the reasons for the separation and the rights available to him; he indicated the applicant had personally made his elections. e. On 28 September 1975, the separation authority approved the commander's recommendation and directed the applicant's honorable discharge; on 3 October 1975, he was discharged accordingly. His DD Form 214 showed he completed 1 month and 24 days of his 2-year enlistment contract; he was awarded or authorized the National Defense Service Medal. f. On 14 August 1975, as part of the applicant's effort to enlist into the Regular Army, he completed a DD Form 1966 (Application for Enlistment – Armed Forces of the United States), in which he affirmed the following: * Item 26a (Military Service – Are you now or have ever been in the Regular, Reserve, or National Guard of the United States): "NO" * Item 40a (Involvement with Police or Judicial Authorities – 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): "NO" * Item 42 (Certification – By Applicant): the applicant acknowledged if any information was knowingly false or incorrect, he could be prosecuted or administratively separated with a less than an honorable discharge g. He enlisted into the Regular Army on 15 August 1975 for 3 years. Orders assigned him to Fort Dix, New Jersey for BCT; he arrived on 22 August 1975. h. A Department of Justice, Federal Bureau of Investigation report, dated 11 September 1975, showed the applicant was arrested by civil authorities on five occasions between 1972 and 1974. i. On 8 October 1975, the applicant's BCT commander advised him via memorandum of his intent to separate the applicant under the provisions of chapter 14 (Fraudulent Entry), paragraph 14-5 (Incident of Fraudulent Entry), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). j. On 17 October 1975, after consulting with counsel (a military lawyer), the applicant acknowledged counsel had advised him of the basis for the separation action. The applicant requested consideration of his case before a board of officer and to personally appear before the board with his counsel. The applicant also acknowledged he would only be afforded the opportunity to present his case before an administrative discharge board if an undesirable discharge was deemed appropriate. He elected to submit a statement in his own behalf; he wrote, in effect: (1) On 10 August 1975, he was coming from work in a labor migrant camp in Norfolk, Virginia when he decided to meet with an Army recruiter. He told the recruiter his problems, and that he was from Florida not Virginia; the recruiter told him not to worry. (2) When the recruiter asked if he had been arrested, the applicant confirmed a prior arrest, but stated the charges were dropped; the recruiter said not to worry, and if anyone asked him, the applicant should tell them "no." k. In his recommendation to the separation authority, the applicant's BCT commander stated the basis for this action was the following: "ENTNAC (Entrance National Agency Check) results reveal arrest record which EM (enlisted member) did not list on his enlistment documents." l. On 7 November 1975, the separation authority approved the commander's recommendation and directed the applicant's honorable discharge; he was discharged accordingly on 11 November 1975. His DD Form 214 shows he completed 2 months and 27 days of his 3-year enlistment contract; he was awarded or authorized two marksmanship qualification badges. 5. The applicant asserts his brother illegally used his SSN to enlist into the USAF; this caused the applicant to be discharged for fraudulent enlistment. The applicant did not submit proof of his claim and his service records verify the basis for his separation was his failure to list his prior arrest record on his DD Form 1966. AR 15-185 (ABCMR) states the Board is not an investigative body; it decides cases using the evidence presented by an applicant and available in the applicant's service record. Regarding fraudulent entry, AR 635-200 required commanders to process Soldiers for separation when the commander determined they deliberately misrepresented, omitted, or concealed incidents/information that could have caused them to be rejected for enlistment. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board agreed there was no error or injustice with the reason. He did not disclose his criminal record and was separated for fraudulent enlistment. 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: 1. 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. 2. Prior to closing the case, the Board noted the administrative notes below by the analyst of record and recommended that change be completed to more accurately depict the military service of the applicant. 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. ADMINISTRATIVE NOTE(S): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. As a result, amend his DD Form 214, ending 11 November 1975, by adding the National Defense Service Medal. REFERENCES: 1. Title 10, USC, 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 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. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 addressed separation processing for fraudulent entry cases in which commanders had determined Soldiers deliberately misrepresented, omitted, or concealed incidents/information that might have resulted in their rejection for enlistment. When the general court-martial convening authority verified a Soldier's fraudulent entry, he/she could direct discharge and issue a general or honorable discharge; direct the convening of a board of officers; or send the case back to the unit commander and direct retention. 3. AR 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states 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. ABCMR Record of Proceedings (cont) AR20180016771 4 1