IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100019762 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states, in effect, he entered the Army when he was 16 years old; his recruiter didn't investigate and verify his true age.  Because he was so young, he was unable to make mature, sound decisions and should never have been accepted for military service.  He feels he should therefore be given a general discharge.

3.  The applicant provides a copy of his birth certificate.

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's Certification of Vital Records, State of Texas, Ellis County, issued on 14 June 2010, shows his date of birth as 17 November 1949.

3.  The applicant enlisted in the Regular Army (RA) for 3 years on 18 February 1966.  On his enlistment contract, he falsified his date of birth as being 17 November 1948 and he provided a DD Form 373 (Consent, Declaration of Parent or Legal Guardian), reportedly signed by his mother on 9 February 1966, attesting to his date of birth DOB as 17 November 1948 and consenting to his enlistment.

4.  The applicant was assigned to Fort Polk, LA for basic combat training (BCT). While in BCT, he was absent without leave (AWOL) from 12-17 March 1966.  On 17 March 1966, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), and received the following punishment:

* forfeiture of $43.00 pay per month for 2 months
* restriction to the unit area for 45 days
* extra duty for 45 days

5.  The applicant completed BCT and advanced individual training (AIT) without further incident.  He was awarded military occupational specialty (MOS) 76A (Supply Clerk) and he was ordered to report to Fort Benning, GA for his first permanent duty assignment.  

6.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was AWOL or confined on the following dates:

* 5-12 July 1966 (AWOL)
* 14 July 1966 to 29 August 1966 (AWOL)
* 30 August 1966 to 28 September 1966 (confined civil authorities)
* 29 September 1966 to 12 December 1966 (confined military authorities)
* 2 October 1967 to 17 December 1967 (AWOL)
* 18 December 1967 to 4 January 1968 (confined civil authorities)
* 5 January 1968 to 1 February 1968 (confined military authorities)

7.  The applicant was tried by a special court-martial for the AWOL periods from 5-12 July 1966 and 14 July 1966 to 29 August 1966.  In accordance with his plea of guilty, he was found guilty and sentenced to:

* confinement at hard labor for 6 months
* forfeiture of $64.00 pay per month for 6 months

The sentence was adjudged on 16 November 1966 and approved on 28 November 1966 with a suspension of the remainder of the sentence to confinement for a period of 3 months, at which time, unless sooner vacated, the suspended sentence was to be remitted.  On 15 August 1967, the suspension of his sentence to confinement was vacated.

8.  The applicant was tried by a special court-martial for AWOL from 2 October 1967 to 18 December 1967.  In accordance with his plea of guilty, he was found guilty and sentenced to:

* confinement at hard labor for 6 months
* forfeiture of $64.00 pay per month for 6 months

The sentence was adjudged on 3 January 1968 and approved on 5 January 1968.

9.  On an unknown date, the applicant's chain of command recommended the applicant be discharged by reason of unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), then in effect.  On 27 January 1968, the Commanding General, Headquarters, III Corps, Fort Hood, TX, approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate.

10.  The applicant was discharged 2 February 1968 with an undesirable discharge.  His DD Form 214 shows he completed 1 year, 2 months, and 2 days of total active service with 290 days of time lost.

11.  On 5 March 1971, the applicant enlisted in the RA for 3 years.  On his enlistment contract, he indicated he had no prior active Federal service, and he again listed his DOB as 17 November 1948.

12.  The applicant once again reported to Fort Polk for BCT.  He was AWOL or confined on the following dates:

* 22 March 1971 to 26 November 1971 (AWOL)
* 27 November 1971 to 9 January 1974 (confined civil authorities)
* 10 January 1974 to 10 September 1975 (AWOL)
* 11 September 1975 to 22 September 1975 (confined military authorities)
* 14 October 1975 to 8 December 1975 (AWOL)


13.  While the applicant was AWOL from 22 March 1971, he committed the offense of burglary and he was apprehended by civil authorities.  In accordance with his plea of guilty, he was convicted of burglary in the District Court of Van Zandt County, TX and sentenced to confinement in the state penitentiary for
2 years.

14.  The applicant's chain of command initiated action to discharge him based on his civil court conviction under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion).  Because of his numerous periods of AWOL, final action was not taken on his administrative discharge until 1 March 1976 when the Commanding General, III Corps, Fort Hood approved the discharge action.

15.  On 10 March 1976, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-206 for a civil court conviction.  He completed 4 months and 9 days of creditable active federal service this period with 1,702 days of time lost.

16.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  The regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

18.  Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an undesirable discharge was considered appropriate.

19.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel and provides guidance on characterization of service.  


paragraph 3-7b states that a General Discharge (GD) is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier 
whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had two periods of enlistment.  On his first enlistment, he fraudulently represented his age as 17 years old and, with parental consent, he enlisted for 3 years; there is no indication he ever informed the Army of his true age.  Although he received NJP for a brief AWOL in BCT, he completed his training and he was awarded an MOS.  Given assignment orders to Fort Benning, he opted to go AWOL on numerous, lengthy occasions.  He was convicted by two special courts-martial, and ultimately discharged for unfitness with an undesirable discharge.

3.  On his second enlistment, the applicant was 21 years old and he fraudulently represented that he had no prior Federal service.  Almost immediately after enlisting, he went AWOL.  During his lengthy AWOL, he committed a burglary.  He was apprehended by civil authorities, convicted, and sentenced to 2 years in the state penitentiary.  This ultimately led to his second undesirable discharge for a civil court conviction.

4.  The applicant was underage during his first enlistment; however, he fraudulently represented himself as older and had parental consent to enlist.  He was discharged for unfitness based on his habitual AWOLs, and he argues his behavior was the result of his age and immaturity.  On his second enlistment, he was 21, yet he failed to demonstrate any increased level of maturity.  If anything, his behavior was worse on his second enlistment.

5.  The applicant's administrative separations were accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to have jeopardized his rights.  The type of discharges directed and the reasons therefore were appropriate considering all the facts of the case.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.



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 for correction of the records of the individual concerned.



      ____________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)                                         AR20100019762



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100019762



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1