ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 July 2020 DOCKET NUMBER: AR20190005855 APPLICANT REQUESTS: correction of his DD Form 214 (Report of Separation from Active Duty) to show he completed 183 days of active service from 18 July 1978 through 17 January 1979. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States), dated 14 July 1978 and resigned on 18 July 1978 * Orders 16-61, Headquarters, U.S. Army Field Artillery Center and Fort Sill, dated 16 January 1979 * Orders 16-62, Headquarters, U.S. Army Field Artillery Center and Fort Sill, dated 16 January 1979 * DD Form 214 REFERENCES: 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. 2. Army Regulation 601-210 (Regular Army Enlistment Program), in effect at the time, prescribed the basic eligibility criteria for enlistment in the Regular Army. An individual's eligibility would be determined on the basis of his ability to meet all requirements of this regulation, to include procurement of any necessary waivers. The moral and other administrative criteria stated men applying must not answer, or not have answered, "Yes" to any of the questions in Part II of the DA Form 3286 (Statements for Enlistment), except that a man may be enlisted or extended if he had five or less minor traffic offenses during a 1-year period. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the authority for separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; the procedures for implementation of laws and policies governing voluntary retirement of enlisted personnel of the Regular Army by reason of length of service; and the criteria governing the issuance of Honorable, General, and Undesirable Discharge Certificates. a. Chapter 14 (Misconduct – Fraudulent Entry) 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. b. Paragraph 14-5c (Concealment of Conviction by Civil Court) provided that an individual who concealed his conviction by civil court of a felonious offense normally would not be considered for retention. If information concerning the existence of a civil criminal record is required from the Federal Bureau of Investigation (FBI), the contact with the FBI must be made by Headquarters, Department of the Army. Specific details of circumstances in a case may be obtained however by direct communication with the appropriate civil law enforcement agency, other than the FBI, by the commander concerned. c. Paragraph 14-11a (Action by Unit Commander) provided that when the evidence to support a deliberate misrepresentation, omission, or concealment of facts which might have resulted in rejection has been obtained, the unit commander will forward a military letter to the commander exercising general court-martial jurisdiction. The unit commander will enclose a statement by the individual concerning his rights, any other statements or evidence submitted by the individual, and include the recommendation for discharge or retention if it is determined that fraudulent entry did occur. The unit commander will not recommend the type of discharge certificate to be awarded. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents which were prepared for individuals upon retirement, discharge, or release from active military service. Separation documents provide the recipients with a record of their military service; the Army with a source of information for administrative purposes; and other governmental agencies with an authoritative source of information for administering Federal and State laws pertaining to veterans. Paragraph 2-8 contained item-by-item instructions for completing the DD Form 214. a. Paragraph 2-8j(2)(f) stated for item 9a (Type of Separation), enter the applicable term associated with the separation orders format and showed the term for orders format 505 as "Release from Custody and Control of the Army." b. Paragraph 2-8l(1) stated for item 9c (Authority and Reason), enter the statutory and or regulatory authority for separation. c. Paragraph 2-8m stated for item 9d (Effective Date), enter the effective date of discharge shown on the separation orders. d. Paragraph 2-8n(6) stated for item 9e (Character of Service), enter "NOT APPLICABLE" for release from custody and control of the Army due to voidance of fraudulent enlistments. e. Paragraph 2-8o stated for item 9f (Type of Certificate Issued), enter "NONE" for voidance due to fraudulent entry. f. Paragraph 2-8u stated for item 15 (Date Entered Active Duty This Period), enter the date in the same manner as item 9d above. g. Paragraph 2-8y stated for item 18 (Record of Service), see Department of Defense Pay Manual, chapter 1, for detailed instructions on computation of basic pay. h. Paragraph 2-8ah(14) stated for item 27 (Remarks), list in-service training courses successfully completed during this period of service. In instances of voidance due to fraudulent entry, successful completion of basic combat training, advanced individual training, and other in-service training will be recorded. i. Paragraph 2-8ah(18) stated for item 27 (Remarks), an entry will be made to indicate that time served during periods of voided service is not creditable for promotion or longevity. 4. The Department of Defense Pay Manual, chapter 1, in effect at the time, provided that time served in an enlistment that is terminated, voided, or invalidated as fraudulent is not creditable. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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 he served for a total of 183 days from 18 July 1978 through 17 January 1979. This error may prevent him from receiving veterans' benefits to which he is entitled. 3. His DA Form 3286 (Statements for Enlistment) is not available for review. 4. His DD Form 1966 (Application for Enlistment – Armed Forces of the United States), dated 11 July 1978, shows: a. He checked "Yes" in block 39c, that asked "Have you ever been detained, held in any jail or prison, or reform or industrial school, or any juvenile facility under the jurisdiction of any city, county, state, federal or foreign country?" b. He checked "Yes" in block 39d, that asked "Have you ever been awarded, or are you now under suspended sentence, parole, or probation or awaiting any action on charges against you?" c. He checked "No" in block 40e, that asked "Have you been released from parole, probation, juvenile supervision, or given a suspended sentence or relieved of charges pending on condition that you apply for or enlistment in the U.S. Armed Forces?" d. He checked "No" in block 40f, that asked "Are you now involved in or a party to or connected with any court action or civil suit?" e. In block 40g, he described the offenses indicated in block 39c through block 39d as three separate traffic violations. 5. On 18 July 1978, he enlisted in the Regular Army in the rank/grade of private/E-1 for a period of 3 years. 6. On 15 August 1978, a records check from the U.S. Department of Justice, FBI, reported the applicant was arrested on 11 March 1977 on the charge of indecent liberties with a child, and shows the disposition as pending. 7. On 25 October 1978, Headquarters, U.S. Army Field Artillery Center and Fort Sill, notified his unit commander that a records check revealed he concealed disqualifying information which would have required a waiver upon entry into the service and separation action would be initiated not later than 27 September 1978 under the provisions of Army Regulation 635-200, chapter 14 (Fraudulent Entry.) 8. On 12 January 1979, consistent with the chain of command's recommendations, the separation authority approved the recommendation for his separation due to fraudulent enlistment. By order of the commanding general, orders would be issued to void his enlistment contract under the provisions of Army Regulation 635-200, chapter 14, as he concealed his civil conviction of indecent liberties with a child and refused to make a statement. 9. Headquarters, U.S. Army Artillery Center and Fort Sill, Orders 16-62, dated 16 January 1979, released him from the custody and control of the Army effective 17 January 1979. 10. The memorandum from Headquarters, U.S. Army Artillery Center and Fort Sill, dated 17 January 1979, notified him of the regulatory authority and reason for his separation from active duty (misconduct – fraudulent entry.) He was advised that he is not eligible for reenlistment unless waiver consideration is permissible and granted. 11. On 17 January 1979, he was released from the custody and control of the Army. His DD Form 214 shows in: * item 9a (Type of Separation) – Released from Military Control by Reasons of Void Enlistment * item 9c (Authority and Reason) – Army Regulation 635-200, chapter 14 * item 9e (Character of Service) – Not Applicable * item 9f (Type of Certificate Issued) – None * item 18a (Net Active Service This Period) – 0 years, 0 months, and 0 days * item 18c (Total Active Service) – 0 years, 0 months, and 0 days * item 27 (Remarks) – Time Served during Periods of Voided Service is Not Creditable for Promotion or Longevity BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The applicant failed to report a criminal charge against him during his enlistment processing. As such, his entry into the Army was fraudulent and he was properly discharged with voided service as required by the governing regulation. By a preponderance of the evidence, the Board determined his voided service is not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (continued) AR20190005855 6 1