IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100021773 


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 correction of his DD Form 214 (Report of Separation from Active Duty) by vacating all fictitious and erroneous judgments for absent without leave (AWOL) status and that he be compensated for seven and one half years loss for unlawful deprivation of liberty. 

2.  He states in April to June 1975, the U.S. District Court at Trenton, NJ ordered the U.S. Army to grant him an honorable discharge since the Army never had lawful jurisdiction over him.  Therefore, all charges of AWOL could not stand against him.    

3.  He contends the Selective Service Board, the U.S. Attorney General, and the U.S. Army committed the error and continuously compounded the same. 

4.  He provided:

* a self-authored statement
* his DD Form 214 (Report of Separation from Active Duty)
* a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty)
* a letter from the Department of Veterans Affairs (VA)
* a letter from the National Personnel Records Center (NPRC)
* a U.S. District Court voucher for compensation 
* a warrant for arrest
* a criminal docket
* a U.S. Court of Appeals general docket
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.  He provided a U.S. District Court for the District of New Jersey document, dated 14 July 1966, that shows a warrant for his arrest was in place.  One of the charges listed in this document was for his willful failure to submit for induction into military training and service of the Armed Forces filed on 4 August 1965.  He pleaded not guilty and the judge ordered him released on $500.00 recognizance.  However, based on other non-related criminal charges, he was sentenced to civil confinement. 

3.  A Standard Form (SF) 88 (Record of Medical Examination) shows he was given an examination on 27 November 1967.  Item 5 (Purpose of Examination) contains the entry, "Volunteer for Armed Services."  The examination was performed at the U.S. Public Health Services Hospital, Federal Correctional Institute (F.C.I.), Danbury, CT.  An SF 89 (Report of Medical History), dated 
27 November 1967, also shows in item 5 (Purpose of Examination) he volunteered for the Armed Services.  

4.  His record contains a Parole Form I-2 (U.S. Department of Justice, Application for Parole).  This document shows, in part:

* he was confined in a federal correctional institution for failure to abide by his induction notice
* he applied for parole on 4 December 1967 with the promise he would abide by his induction into the Army 
* his plans for the future were to:

* fulfill his military obligation
* live with his wife and children
* acquire substantial employment, and further his education

* his justification for applying was to rectify himself with the U.S. government
* he gained an understanding of the common sense of the autonomous U.S. Board of Parole
* his previous record of arrests and dispositions included:

* disorderly conduct – May 1965
* misdemeanor (embezzlement) – May 1966 (was still pending at the time of his application)

5.  A memorandum from the F.C.I., Danbury, CT, prepared on 23 April 1968 shows he was granted parole for induction into the Armed Forces, pursuant to Executive Order 11325.  

6.  His record contains a Parole Form H-7 (Notice to Institution), dated 26 April 1968.  This document states that under Executive Order 11325, the board in its offices in Washington, DC, had carefully examined all the information and evidence at its disposal in relation to the applicant.  On 12 April 1968, mandatory release status was ordered and he was granted effective parole only upon induction into the Armed Forces. 

7.  The same form also shows that during the time that he was actually serving in the Armed Forces his parole supervision was suspended.  If he was released from the Armed Forces under honorable conditions prior to 22 September 1969, he was to report to his assigned U.S. Probation Officer. 

8.  His record contains a New Jersey, State Headquarters for Selective Service letter, prepared on 28 June 1968 which shows, in part, that the necessary documentation, including physical examination papers, was being forwarded to the U.S. Attorney, New Haven, CT for his immediate induction processing. 

9.  His DD Form 47 (Record of Induction) shows he was in the custody of the law at the time he was inducted into the Army of United States.  Accordingly, on 16 July 1968 he was inducted and ordered to report to Fort Jackson, SC for basic combat training (BCT).  Item 13a (Convicted or Adjudicated of Crime other than Minor Traffic Violation) shows:

* disorderly conduct – May 1965
* a U.S. District Court, Selective Service violation – 15 June 1966
* he was sentenced to three years 

10.  A memorandum, prepared on 11 September 1968, from the Commander, Company C, 6th Battalion, 2nd BCT Brigade addressed to the applicant's spouse shows he had been AWOL since 31 August 1968.  His commander petitioned her to contact the applicant (if she knew his whereabouts) and request that he return to military control as soon as possible.  

11.  A second memorandum, prepared by the same office on 1 October 1968, shows a commander's inquiry was prepared showing the applicant had been dropped from the rolls (DFR) on 29 September 1968.  The commander noted that he had spoken with the applicant on several occasions during his AWOL period and he had informed the commander of his intent to return.  He also stated his reason for going AWOL was to have sufficient time to prepare a case against the Army for erroneous induction. 

12.  His records contain Headquarters, Special Troops, Special Court-Martial Order Number 137, issued on 20 January 1969.  This order shows that contrary to his plea of not guilty, he was convicted of violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for going AWOL from 31 August to 11 October 1968.  His sentence was adjudged on 7 January 1969 and he was ordered to be confined at hard labor for 6 months.   

13.  On 5 February 1969, his sentence was ordered executed except for the portion pertaining to 6 months confinement, which was suspended for 
3 months.  

14.  The applicant, subsequent to his induction, filed a writ of habeus corpus in a federal court in New Jersey seeking his release from the Army.  In part, he challenged his induction because the Army failed to follow its regulations because it inducted him when he had a pending criminal case (for embezzlement).  The court found he failed to properly disclose his case and ruled he was estopped or barred  from using this as a basis to challenge his induction.  (See Deans v. Clifford, 420 F.2d 30 (C.A.N.J. 1970).

15.  His DA Form 20 (Enlisted Qualification Record) shows the following:

* Item 38 (Record of Assignments):

Effective Date
Principal Duty
Station
16 July 1968
Recruit
Fort Jackson, SC
29 July 1968
Trainee
Fort Jackson, SC
29 September 1968
DFR
Fort Jackson, SC
12 October 1968
Returned to Military Control
Fort Dix, NJ
17 February 1969
Trainee
Fort Dix, NJ
17 April 1969
DFR
Fort Dix, NJ
9 September 1969
Duty Soldier 
Fort Dix, NJ
18 November 1969
AWOL
Fort Dix, NJ
17 December 1969
DFR
Fort Dix, NJ 
23 July 1974
Casual 
Fort Dix, NJ
2 June 1975
Released from Military Control
Fort Dix, NJ
* Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Expiration Term of Service):

FROM
TO
DAYS
REASON
31 August 1968
11 October 1968
42
AWOL
17 March 1969
8 September 1969
176
AWOL
18 November 1969
22 July 1974
1707
AWOL
16.  His record contains a U.S. Army Enlisted Records Center memorandum, dated 25 July 1974, which shows he returned to military control on 23 July 1974, at Fort Dix, NJ.

17.  A DD Form 458 (Charge Sheet) shows he was charged with two specifications of violating Article 86 of the UCMJ for going AWOL as follows:

* From 17 March to 9 September 1969
* From 18 November 1969 to 23 July 1974

18.  On 1 August 1974, he hand wrote a letter to the Secretary of the Army, requesting release from pre-trial confinement and immediate discharge from the Army under the provisions of Chapter 10, Discharge for the Good of the Service - In Lieu of Trial by Court-Martial, Army Regulation 635-200 (Enlisted Separations).

19.  On 19 August 1974, his battalion commander recommended disapproval of his request for release from pre-trial confinement.  However, he did recommend the applicant be tried by special court-martial under the jurisdiction of a general court-martial convening authority (GCMCA) pursuant to paragraph 15b, Manual for Courts-Martial (MCM), 1969 and change 3, Army Regulation 27-10 (Military Justice).

20.  Accordingly, on 12 September 1974, the GCMCA disapproved his request for release from pre-trial confinement due to the seriousness of the offenses alleged against him.  The GCMCA noted that he had considered the applicant's assertions concerning the propriety of his induction as a Motion to Dismiss the Charge and Specifications against him on the grounds of lack of jurisdiction.  However, the motion was denied.  The applicant's request for a copy of the GCMCA's denial for discharge under the provisions of Chapter 10, Army Regulation 635-200, was approved.  

21.  On 19 September 1974, he was afforded the opportunity to participate in the Presidential Program for Return of Military Deserters.  He stated that he desired to participate in the program and requested a delay in the processing of the charges against him.  

22.  A memorandum shows that on 23 September 1974, his case containing his request for participation in the Presidential Program for Return of Military Deserters and the charges preferred against him were forwarded to the U.S. Army Administration Center and Fort Benjamin Harrison, Staff Judge Advocate, for disposition.  The charge and specifications that were preferred against him were withdrawn on the same date. 

23.  Documents from the U.S. District Court, District of New Jersey show that while confined by military authorities on 24 February 1975, he filed a petition against the GCMCA of Fort Dix, NJ for the following:

* Unlawful detention and restraint of liberty
* Cause and pretext of such detention and restraint, resulting in his AWOL
* Violation of his rights for erroneous induction

24.  His records contain a DA Form 2496 (Disposition Form) signed by the Chief, Military Personnel Branch Litigation Division on 30 April 1975.  This form shows the following:

	a.  He was recommended to be released from custody and control of the U.S. Army pursuant to Army Regulation 635-200, paragraph 5-5b.  She stated that his assertion that he was erroneously inducted should be accepted. 

	b.  He was convicted of violation of the Selective Service Act of 1948 and on 26 April 1968 was paroled pursuant to Executive Order 11325 (1967).  On 
16 July 1968, he was inducted and had been AWOL on several occasions subsequent to that date.

	c.  In July 1974, he was in control of military authorities at Fort Dix, NJ and was charged with the offense of AWOL.  The charges were dismissed upon his request for clemency.  

	d.  He was subsequently denied admission to the clemency program due to his incarceration on a state prison sentence of 18 months confinement.

	e.  Executive Order 11325 applies only to individuals convicted under the Selective Service Act of 1967.  He was convicted of violation of the 1948 Act.  After conferring with the Department of Justice, U.S. Parole Board personnel, and the Selective Service System, the concerned U.S. Attorney advised that defense of the case would be difficult, protracted and uncertain.  

	f.  The U.S. Attorney recommended the applicant's release from custody and control since that release would put him right back in control of the U.S. Board of Parole and would leave him liable for service of his final year in prison under his 1966 conviction.

	g.  The Chief recommended acquiescence of the applicant's claim of erroneous induction because the dismissal of charges and the delay in trying him for AWOL had precluded any hope of a conviction for that offense. 

	h.  An attempt to discharge him with anything less than an honorable discharge would have been uncertain due to the availability of no previous AWOL convictions to cloud his record.

	i.  A discharge under honorable conditions would not only give him Veterans benefits, but would also preclude his return to parole board custody.

	j.  It appeared that the most certain method of ridding the Army of the applicant while not enhancing his position would be to accept his assertion of erroneous induction and release him with no discharge certificate at all.  

	k.  If such an action was taken in response to the applicant's claim assertions, it would preclude a later claim from him that he was properly paroled or that in any event, he complied with the terms of his 1968 parole and should not be required to complete service of his 1966 sentence. 

	l.  His immediate release from custody and control was requested pursuant to paragraph 5-5b of Army Regulation 635-200.

25.  A memorandum from the U.S. Army Military Personnel Center, dated 23 May 1975, shows that his immediate release from custody and control of the Army was directed under the provisions of paragraph 5-5 of Army Regulation 635-200.  He would be issued an order releasing him from military control and a DD Form 214.  It was also directed that he not be issued any type of discharge certificate and that item 9 (Character of Service) would be shown as Under Honorable Conditions.

26.  His records contain a copy of Headquarters, U.S. Army Training Center and Fort Dix, Special Orders Number 153, dated 2 June 1975.  These orders show he was released from custody and control of the Army on 2 June 1975.  

27.  Accordingly, his DD Form 214 shows he was discharged from the Army on 
2 June 1975 under the provisions of Army Regulation 635-200, paragraph 5-5 and given a Special Program Designator (SPD) code of YFC.  His character of service was listed as Under Honorable Conditions.  Item 9f (Type of Certificate Issued) contains the entry "None."  Item 18 (Record of Service) shows he completed 6 months and 2 days of net active service and that he was unavailable for signature.   

28.  His DD Form 214 also shows the following information pertaining to his periods of AWOL and military confinement:

* Item 21 (Time Lost (Preceding Two Years)) – 664 days
* Item 27 (Remarks):

* 2174 days lost under Title 10, U.S. Code 972 

* From 31 August through 11 October 1968
* From 17 March through 8 September 1969
* From 18 November 1969 through 22 July 1974
* From 26 September 1974 through 1 June 1975

* 1715 days lost subsequent to Normal Expiration Term of Service

* From 16 July 1970 through 22 July 1974
* From 26 September 1974 through 1 June 1975 

29.  He provided a DD Form 215 that shows item 18 of his DD Form 214 was corrected to show he served a total of 11 months and 3 days of net active service. 

30.  He also submitted a copy of an NPRC letter which shows he requested a copy of his separation/discharge papers in the year 2005.

31.  Army Regulation 635-200, chapter 5, in effect at that time prescribed guidance on separation for convenience of the government.  Paragraph 5-5a states that enlisted personnel erroneously inducted in the Army will be released from custody and control of the Army except where an individual procured his induction by fraud or where conduct subsequent to induction clearly establishes that the individual is barred from demanding release from the Army.   

32.  Paragraph 5-5b of the same regulation states that an individual claiming erroneous induction because of a procedural right as provided by the Military Selective Service Act of 1967 may submit a request for release from custody and control of the Army.  All requests were to be forwarded to the Director, Selective Service System, Washington D.C.  The request would be disapproved if it was determined that an individual was not denied a procedural right.   

33.  Paragraph 5-5c states upon discovery that an individual who was erroneously inducted through an error made at the Armed Forces Examining and Entrance Station (AFEES) and prior to the individual's departure from that station, would be released from the custody and control of the Army by the AFEES commander by virtue of a void induction by special order.  

DISCUSSION AND CONCLUSIONS:

1.  His request to vacate all erroneous judgments for AWOL and to be compensated for seven and one half years of unlawful deprivation of liberty was carefully considered.  However, his contentions are not supported by the evidence of record.

2.  The available evidence shows he was charged with a Selective Service violation on 15 June 1966, for willful failure to submit for induction into the Armed Forces on 4 August 1965.  He was sentenced to three years confinement as a result of other criminal charges.  

3.  He was convicted of violating the Selective Service Act (1948) and on 26 April 1968, he was granted parole for induction pursuant to Executive Order 11325 (1967).  On 16 July 1968, he was inducted into the Army per his request, and released from prison on this basis.   
4.  He went AWOL from 31 August through 11 October 1968.  He conferred with his company commander and stated his reason for going AWOL was to have sufficient time to prepare a case against the Army for erroneous induction.   

5.  His record shows that after he returned to military control he went AWOL two more times, totaling 2174 days with 1715 of those days lost subsequent to normal expiration term of service.  Therefore, his claims of fictitious and erroneous judgment for AWOL are unfounded. 

6.  Executive Order 11325 only applied to individuals convicted under the Selective Service Act of 1967.  While there appears to be an error under the appropriate Executive Order for which he was inducted, it still does not negate the fact that he voluntarily requested induction and then went AWOL for 2174 days.  

7.  Army Regulation 635-200, paragraph 5-5, in effect at the time stated that enlisted personnel erroneously inducted in the Army would be released from custody and control of the Army upon discovery.  

8.  A memorandum from the U.S. Army Military Personnel Center directed his immediate release from custody and control of the Army under the provisions of paragraph 5-5 of Army Regulation 635-200.  Accordingly, he was discharged under honorable conditions on 2 June 1975.  

9.  The Army released him in 1975.  He waited over 35 years to make his claim to the Army.  His claim is barred under the equitable Doctrine of Laches, which bars claims from an applicant who unreasonably and without basis delays filing.  (Those who wait do so at their own peril). 

10.  In view of the foregoing, he is not entitled to the 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)                                         AR20100021773





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021773



11


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1