IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080000906 


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 that his undesirable discharge be upgraded to an honorable discharge.  He also requests that he be appointed an attorney to handle his case on his behalf since he is currently incarcerated and cannot appear before the Board.

2.  The applicant states, in effect, that he erroneously enlisted into the Army and that he was granted a Presidential Pardon by President Gerald Ford.  He states that when he enlisted into the Army, he was not nearly settled in mind or spirit and that he was a child who had never been away from home.  He states that at the time of his enlistment, he signed his "dad's" name on the Consent, Declaration, of Parent or Legal Guardian (DD Form 373); therefore, his enlistment contract is void and unenforceable as there is no witnessing official signature of the form.  He states that he adhered to the influences of others who encouraged his wrong doing and that he had never experienced drugs until he was in the Army.  He states that after his discharge, he tried to reenlist to straighten out his record; however, he was denied reenlistment.  

3.  The applicant states that he knows that there is a black list for those who were discharged as he was discharged and that he has been through a lot.  He states that he believes that he was incarcerated for crimes that he did not do as a result of the type of discharge that he received.  He states that he is of Cherokee decent and that back in the early seventies, he applied for and was granted a presidential pardon; however, he never received any substantiating documentation.  He states that he is getting older, he is in poor health and that he would like to have peace of mind and to die in peace.  He states that he has paid for his mistakes and that he has no other way to undo what lies in the past.

4.  The applicant provides in support of his application, a document addressed to him, entitled “In The Court Of The Sovereign Cherokee Nation,” dated 28 June 2004; and a letter addressed to this agency dated 15 January 2008, regarding his enlistment in the Army.

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 was born in Dalton, Georgia, on 20 March 1953.  On 26 February 1971, the applicant enlisted in the Regular Army at age 17, with parental consent, for 3 years, in the pay grade of E-1.  The DD Form 373 that was completed at the time of his enlistment shows both of his parent's signatures; however, there is no witnessing official signature shown.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 17 March 1971, for being absent without leave (AWOL) from 10 March 1971 until 15 March 1971.  His punishment consisted of a forfeiture of pay in the amount of $31.00, restriction for 14 days and extra duty for 14 days.

4.  On 19 April 1971, NJP was imposed against the applicant for being AWOL from 12 April 1971 until 19 April 1971.  His punishment consisted of a forfeiture of pay in the amount of $31.00.

5.  The applicant went AWOL on 25 April 1971 and he remained absent in a desertion status until he surrendered to military authorities and was returned to military control on 25 June 1971.

6.  He went AWOL again on 8 July 1971 and he remained absent in a desertion until status until he was apprehended by civil authorities and was returned to military control on 5 October 1971.

7.  On 6 October 1971, the applicant was notified that charges were pending against him for being AWOL from 25 April 1971 until 24 June 1971 and from 8 July until 4 October 1971.  He acknowledged receipt of the notifications on 15 October 1971 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  Along with his request for discharge, the applicant submitted a statement in his own behalf indicating that both of his parents were in "ill health" which prevented them from securing good jobs.  He stated that his father hurt his back a few years prior and was not able to lift or bend much; and that his mother had bad nerves since the birth of his sister. He stated that he was unable to adjust to military life; that being away from home and worrying about the welfare of his family made it difficult for him to think about anything else; that he was told that he could return to the job that he had prior to his enlistment once he was separated from the Army; and that he believed that it would be to the Army's advantage to allow him to resign for the good of the service.

8.  On 12 November 1971, the appropriate authority approved the request for discharge and the issuance of an Undesirable Discharge Certificate.  Accordingly, on 26 November 1971, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 3 months and 15 days of total active service and he had approximately 170 days of lost time due to being AWOL and in confinement.  He was furnished an Undesirable Discharge Certificate.

9.  There is no evidence in the available records that shows that the applicant was ever granted a Presidential Pardon after his discharge from the Army.

10.  A review of the available records fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized 


punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  Army Regulation 635-200, Section II, (Minority) provides that a soldier will be released from custody and control of the Army because of void enlistment if, upon receipt of satisfactory proof of date of birth, it is shown that he/she was less than 17 years of age at the time of enlistment and that he/she has not yet attained that age.  It further provides, in pertinent part, that a soldier will be released from custody and control of the Army for minority upon application of his/her parents or guardian made within 90 days after the soldier's enlistment, unless charged with a serious offense committed after attaining the age of 17, if there is satisfactory evidence that the soldier is under 18 years of age or the soldier enlisted without the written consent of his/her parents or guardian. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted and, although there appears to be no witnessing official signature on his DD Form 373, there is no evidence in the available record, nor has he submitted any evidence to support his contention that his parents' names were forged on his DD Form 373 or that he was ever granted a Presidential Pardon.

4.  The applicant was 17 years old at the time of his enlistment in the Army on 26 February 1971.  He turned 18 years old on 20 March 1971, which was months before he was charged with his AWOL offenses on 6 October 1971.  The available evidence indicates that he enlisted in the Army with parental consent; that he was not under 18 years old at the time that he committed the offenses that led to his discharge; and that there was no attempt made by his parents within the 90 days required for him to be released from custody and control of the Army, in accordance with the applicable regulation.  The fact that there is no witnessing official signature on the DD Form 373 is not a basis for voiding his enlistment or upgrading his discharge.
5.  The function of the Board is to correct errors and/or injustices in the official records of service members and former service members based on the applicable laws and regulation.  The Board is not an investigative body and it does not provide attorneys on behalf of the applicants.

6.  In order to justify correction of a military record the applicant must show 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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ___        XXX                ___
                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.

ABCMR Record of Proceedings (cont)                                         AR20080000906



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ABCMR Record of Proceedings (cont)                                         AR20080000906



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