IN THE CASE OF:	

		BOARD DATE:	18 August 2009    

		DOCKET NUMBER:  AR20090004866 


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 reconsideration of an earlier appeal to have his discharge upgraded to an honorable discharge.

2.  He is submitting a statement from his father that will show he entered the military without the written consent of his parents.

3.  He states, in effect, that:

	a.  he erroneously enlisted into the Army;

	b.  he was granted a Presidential pardon by President Gerald Ford;

	c.  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;

	d.  at the time of his enlistment, he signed his father's name on the DD Form 373 (Consent, Declaration of Parent or Legal Guardian);

	e.  his enlistment contract is void and unenforceable as there is no witnessing official signature of the form;

	f.  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;

	g.  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; and

	h.  he believes that he was incarcerated for crimes that he did not do as a result of the type of discharge that he received.

4.  He provides a statement from his father, dated 16 December 2008.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of his case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080000906 on 15 May 2008.

2.  The evidence provided is new evidence which will be considered by the Board.

3.  He was born on 20 March 1953.  On 26 February 1971, he 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.

4.  On 17 March 1971, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for the period 10 March 1971 until 15 March 1971.

5.  On 19 April 1971, he accepted NJP under Article 15, UCMJ, for being AWOL for the period 12 April 1971 until 19 April 1971.

6.  A DD Form 458 (Charge Sheet), dated 6 October 1971, shows charges were preferred against him for being AWOL for the period 25 April 1971 through 24 June 1971.

7.  A DD Form 458, dated 12 October 1971, shows that additional charges were preferred against him for being AWOL for the period 8 July 1971 through 4 October 1971.

8.  On 15 October 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his behalf.

9.  He indicated in a statement 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.

10.  On 12 November 1971, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed that the applicant be issued an undesirable discharge.  On 26 November 1971, he was discharged and issued an Undesirable Discharge Certificate.  He had completed 3 months and 15 days of creditable active service with 170 days of lost time due to being AWOL.

11.  There is no evidence in the available records that shows that he was ever granted a Presidential pardon after his discharge from the Army.

12.  He provides a statement from his father, dated 16 December 2008.  His father states he did not sign the document for his son to join the Army.  He further stated that his son was under age at the time and his son signed the document to join the military.

13.  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.  At the time, an undesirable discharge was normally considered appropriate.

14.  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 contends that he erroneously enlisted into the Army by forging his parent's signature on the DD Form 373.  He provided a statement from his father some 37 years later in which his father indicated the applicant forged the DD Form 373 in order to join the military.  However, he was not under 18 years old at the time that he committed the offenses that led to his discharge and 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.  Therefore, there is no basis for this argument.

2.  The evidence shows he 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.

3.  He further contends that he was given a Presidential pardon.  However, there is no evidence in his records and he has not provided evidence that shows he was granted a Presidential pardon.

4.  The applicant's records show that he had four instances of AWOL and he received two Article 15s.  He had completed 3 months and 15 days of creditable active service with 170 days of lost time due to being AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a general discharge.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.


BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20080000906, dated 15 May 2008.



      ___________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.

ABCMR Record of Proceedings (cont)                                         AR20090004866



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ABCMR Record of Proceedings (cont)                                         AR20090004866



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