IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110014230 


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 request to correct his
DD Form 214 (Report of Separation from Active Duty) by vacating all fictitious and erroneous judgments for absence without leave (AWOL) status and compensation for 7 1/2 years loss for unlawful deprivation of liberty.

2.  The applicant states, in effect:

	a.  the 2 June 2011 Army Board for Correction of Military Records (ABCMR) decision was and is a fraud.  He takes exception to the doctrine of laches conclusion.  He can prove the Army and agencies of the Federal government committed fraud against him.  The true record should reflect the fact it has always been the obligation and duty of the Army to correct fraudulent records in their possession and his case demonstrates it was the Army who waited over
35 years to act on his application and petition for justified relief.

	b.  it is without dispute the same legal basis that motivated the Army to effect his discharge and release from custody and the same basis and motivation that required the Army by law to remove the erroneous and fraudulent convictions for ostensible AWOL from his records.

	c.  evidence not disclosed by the U.S. District Court Judge and the Assistant U.S. Attorney constituted fraud by the government.


	d.  he was barred and prohibited by law at the administrative levels of the Federal government from eligibility for military service independent of the pending criminal charges that are an issue in this case.

	e.  his discharge from the Army was motivated by their embarrassment and for administrative expediency.

	f.  at the advice of both the Army's legal staff and the U.S. Justice Department and Attorney General, the Army acted to discharge him without administratively rectifying, correcting, and vacating the fraudulent convictions for AWOL.  The Army decided to unlawfully punish him without cause or justification.

	g.  he submitted a claim for Post Traumatic Stress Disorder (PTSD) (both service-connected and service-related) to the Department of Veterans Affairs (DVA) to effect compensation for unlawful and unconstitutional loss of liberty and freedom effected by the Army for 7 1/2 years.

	h.  from 1965 to 1975 the Selective Service System Local Board, U.S. Justice Department, U.S. Parole Commission, U.S. Defense Department, and Army illegally convicted him, imprisoned him, paroled him into the Army, prosecuted him for AWOL twice, imprisoned him in the stockade twice, kept him under supervision, custody and control for 7 1/2 years, and finally released him under judicial duress.

3.  The applicant provides:

* U.S. District Court for the District of New Jersey document, dated 14 July 1966 – this document was previously considered by the Board
* Two newspaper articles
* VA Form 21-4138 (DVA Statement in Support of Claim), dated 28 June 2011
* Letters, dated 15 August 2011, 21 July 2011, 15 July 2011, 24 June 2011, and 24 August 2010

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100021773, on 2 June 2011.

2.  He provides a newspaper article pertaining to misled justices which cites a court decision that says the Federal government can refuse to allow parties in a 


lawsuit, even judges, to see information that could compromise military secrets.  He provided a newspaper article on the death of a former U.S. Attorney in New Jersey.

3.  He also provided a VA Form 21-4138, dated 28 Jun 2011, that shows he submitted a claim for PTSD, for treatment, and for substantial compensation.

4.  The applicant's arguments, newspaper articles, and VA Form 21-4138 are new evidence that will be considered by the Board.

5.  The U.S. District Court for the District of New Jersey document, dated 14 July 1966, shows a warrant for the applicant's arrest was in place.  One of the charges listed in this document was for his willfully failing to submit for induction into military training and service of the Armed Forces filed on 4 August 1965.  He pled 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.

6.  Medical evidence, dated 27 November 1967, shows he volunteered for the Armed Services.

7.  Records show he was confined in a federal correctional institution for failing 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.

8.  He was granted parole for the express purpose of agreeing to induction into the Armed Forces, pursuant to Executive Order 11325.

9.  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 parole only upon induction into the Armed Forces.  This form also shows that during the time he was actually serving in the Armed Forces his parole supervision was suspended.

10.  His induction record shows he was in the custody of civilian law enforcement at the time he was inducted into the Army of United States.  On 16 July 1968, he was inducted.  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 3 years

11.  Records show he went AWOL on 31 August 1968 and he was dropped from the rolls (DFR) of the Army on 29 September 1968.

12.  On 7 January 1969, he was convicted by a special court-martial of being AWOL from 31 August to 11 October 1968.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $41.00 pay per month for 6 months.  The convening authority approved the sentence but suspended confinement at hard labor in excess of 3 months and forfeiture of pay in excess of $41.00 pay per months for 3 months.

13.  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 barred from using this as a basis to challenge his induction.

14.  He went AWOL on 17 March 1969 and he returned to military control on 
8 September 1969.  He went AWOL again on 18 November 1969 and he returned to military control on 22 July 1974.  On 26 July 1974, charges were preferred against him for the two AWOL periods.  Trial by special court-martial was recommended.

15.  On 1 August 1974, he requested release from pre-trial confinement and immediate discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

16.  On 19 August 1974, his battalion commander recommended disapproval of his request for release from pre-trial confinement.  However, he recommended 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).

17.  Accordingly, on 12 September 1974, the GCMCA disapproved his request for release from pre-trial confinement due to the seriousness of the offenses charged against him.  The GCMCA noted 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.

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

19.  His request for participation in the Presidential Program for Return of Military Deserters and the charges preferred against him were forwarded to the Staff Judge Advocate, U.S. Army Administration Center, Fort Benjamin Harrison for disposition.  The charge and specifications that were preferred against him were withdrawn on the same date.

20.  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

21.  A DA Form 2496 (Disposition Form), dated 30 April 1975, signed by the Chief, Military Personnel Branch Litigation Division 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.  The Chief stated the applicant's assertion 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 he was paroled pursuant to Executive Order 11325 (1967).  On 
16 July 1968, he was inducted into the Army of the United States and had been AWOL on several occasions subsequent to that date.

	c.  In July 1974, he was in the control of military authorities at Fort Dix, NJ and he was charged with 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 the 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 the custody of the parole board.

	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 Army Regulation 635-200, paragraph 5-5b.

22.  A memorandum, dated 23 May 1975, shows that his immediate release from custody and control of the Army was directed under the provisions of Army Regulation 635-200, paragraph 5-5.  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.


23.  On 2 June 1975, he was released from the custody and control of the Army.  His DD Form 214 shows he was discharged 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.  Item 25 (Signature of Person Being Separated) shows he was not available for signature.

24.  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

* 1,715 days lost subsequent to normal expiration of term of service (ETS)

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

25.  He provided a DD Form 215 (Correction to DD Form 214) 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.

26.  There is no evidence of record that shows he was diagnosed with PTSD or any mental condition prior to his discharge on 2 June 1975.

27.  Army Regulation 635-200, chapter 5, in effect at that time prescribed guidance on separation for the convenience of the government.

	a.  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.

	b.  Paragraph 5-5b 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 an individual was not denied a procedural right.

	c.  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, that individual would be released from the custody and control of the Army by the AFEES commander by virtue of a void induction by special order.

28.  The doctrine of laches is defined by Black's Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends from 1965 to 1975 the Selective Service System Local Board, U.S. Justice Department, U.S. Parole Commission, U.S. Defense Department, and Army illegally convicted him, imprisoned him, paroled him into the Army, prosecuted him for AWOL twice, imprisoned him twice, kept him under supervision, custody and control for 7 1/2 years, and finally released him under judicial duress.

2.  His request to vacate all erroneous judgments for AWOL and to be compensated for 7 1/2 years of unlawful deprivation of liberty was carefully considered.

3.  Evidence shows he was charged with a Selective Service violation on 15 June 1966, for willfully failing to submit for induction into the Armed Forces on
4 August 1965.  He was sentenced to 3 years confinement as a result of other criminal charges.

4.  He was convicted of violating the Selective Service Act (1948) and on 26 April 1968, based upon his stated desire to be inducted, he was granted parole for induction pursuant to Executive Order 11325 (1967).  On 16 July 1968, he was inducted into the Army of the United States per his request, and released from prison on this basis.

5.  He went AWOL from 31 August to 11 October 1968.  His record shows that after he returned to military control he went AWOL two more times, totaling 2,174 days with 1,715 of those days lost subsequent to normal ETS.  Therefore, his claims of fictitious and erroneous judgment for AWOL are unproven.

6.  The applicant earned pay while on active duty in a pay status.  When he went AWOL he entered a non-pay status.  During his military service, he elected AWOL over challenging the legality of his induction through the Federal Courts. 

7.  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 2,174 days.  

8.  Army Regulation 635-200, paragraph 5-5, in effect at the time, states that enlisted personnel erroneously inducted in the Army would be released from the custody and control of the Army upon discovery.  He was discharged under honorable conditions on 2 June 1975.  

9.  His contention he submitted a claim for PTSD (both service-connected and service-related) to the DVA to effect compensation was noted.  However, there is no evidence of record and the applicant provided no evidence that shows he was diagnosed with PTSD prior to his discharge on 2 June 1975.

10.  Since it is now almost 37 years after he was discharged from the Army, the doctrine of laches is invoked in his case.  The applicant may argue otherwise in a Federal Court of competent jurisdiction.  Therefore, there is an insufficient evidentiary 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 to amend the decision of the ABCMR set forth in Docket Number AR20100021773, dated 2 June 2011.



      ___________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)                                         AR20110014230



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ABCMR Record of Proceedings (cont)                                         AR20110014230



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