IN THE CASE OF:	  

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140001922 


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 his earlier request for correction of his military records by upgrading his Under Other Than Honorable Conditions (UOTHC) discharge to honorable, or to a general, under honorable conditions.

2.  The applicant states that his enlistment contract is invalid because he was a minor at the time he entered into the contract.  He argues that a parent or guardian can give their permission for a minor to enlist, but they cannot sacrifice the rights of a minor.

3.  The applicant provides no additional documentation.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130003332, on 24 October 2013.

2.  The applicant has provided a new argument that requires consideration by the Board.

3.  In the original record of proceedings, the Board determined that the applicant's administrative separation proceedings were correct and conformed with applicable regulations.  He failed to submit sufficient evidence to show otherwise.  Accordingly, his request was denied by the Board.
4.  A review of the applicant's enlistment contract shows the following:

	a.  A DD Form 1966/8, section IX states that on 2 April 1982 the applicant's father, who indicated he had sole custody of the applicant, gave his consent for the applicant to enlist in the United States Army.  The applicant's date of birth was shown as 16 September 1964, making him 17 years, 6 months, and 22 days of age at the time.

	b.  A DD Form 4 states that on 7 April 1982, the applicant agreed to immediately enlist in the U.S. Army Reserve (USAR) for 6 years beginning in pay grade E-1.

	c.  The applicant's contract further informed him of conditions of law for enlistees, including the fact that many laws, regulations, and military customs would govern his conduct and require him to do many things a civilian does not have to do.  His enlistment was more than an employment agreement.  As a member of the Armed Forces of the U.S., he was required to obey all lawful orders and perform all assigned duties.  He was subject to separation during or at the end of his enlistment.  If his behavior failed to meet acceptable military standards, he could be discharged and given a certificate for less than honorable service.  He was subject to the military justice system, meaning, among other things, he could be tried by military court-martial.  He was required, upon order, to serve in combat or other hazardous situations.  He was entitled to receive pay, allowances and other benefits as provided by law and regulation.

	d.  The applicant's contract also stated that laws and regulations that governed military personnel may change without notice to him.  Such changes could affect his status, pay, allowances, benefits, and responsibility as a member of the Armed Forces regardless of the provisions of this enlistment/reenlistment document.

5.  On 7 April 1982, the applicant completed a DD Form 4/4 acknowledging his sworn oath upon his enlistment, wherein he stated he would support and defend the constitution of the United States, bear true faith and allegiance to the same, and obey the orders of the President of the United States and the officers appointed over him.

6.  On 14 September 1982, the applicant signed section 17 of his contract indicating his agreement and desire to immediately enter the Regular Army for a period of 2 years.  At the time he was 2 days short of being 18 years of age.
Accordingly, he was discharged from the USAR at the same time.

7.  On 21 February 1984, the applicant was discharged for the good of the service in lieu of court-martial.  He was 19 years, 5 months, and 6 days of age at the time.

8.  Title 10, U.S. Code, section 505(a) provides that the Secretary of the Army may accept original enlistments in the Regular Army of qualified, effective, and able-bodied persons who are not less than 17 years of age and has the consent of his parent or guardian.

9.  Army Regulation 635-200 (Personnel Separations) provides:

	a.  Upon receipt of satisfactory proof of date of birth, a Soldier will be released from the custody and control of the Army because of void enlistment if the Soldier enlisted while under 17 years of age and has not yet attained that age.  Unless under charges for a serious offense committed after attaining the age of 17 years, the Soldier will be discharged for minority upon application of the parents or guardian of a regular Soldier made within 90 days after the Soldier’s enlistment if there is satisfactory evidence that the Soldier is under 18 years of age and the Soldier enlisted without the written consent of his or her parent or guardian.

	b.  When minors who are otherwise eligible for minority discharge are under court-martial charges, serving a court-martial sentence, are in military confinement for a serious offense, they will not be discharged for minority until proper disposition has been made in the case.  Although the facts indicate that, in other circumstances, the Soldiers would be discharged for a reason other than minority (misconduct or unsatisfactory performance) it is desirable to avoid action by boards of officers, or trial and confinement of a Soldier who otherwise is eligible for minority discharge.  It is quite proper to go to considerable lengths to determine that no board or trial should be held and to remit any sentence imposed.  Immediate action will be taken, however, to discharge such Soldiers.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his enlistment contract is invalid because he was a minor at the time he entered into the contract.  He argues that a parent or guardian can give their permission for a minor to enlist, but they cannot sacrifice the rights of a minor.

2.  The applicant's enlistment was governed by law and applicable regulations.  When he agreed to enlist in the Armed Forces at the age of 17 years with the consent of his father, he was not considered to be a minor.  Rather, he immediately became an enlisted Soldier who was subject to the laws and regulations over him.

3.  The evidence of record shows that the applicant had attained 17 years of age at the time of his enlistment and had the consent of his father to do so.  Furthermore, he attained the age of 19 prior to being discharged in lieu of 
court-martial.  At that time he could no longer be considered as a minor.

4.  A review of the applicant's contract failed to show any error or injustice.

5.  In view of the above, the applicant's request should be denied.

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 AR20130003332, dated 24 October 2013.




      _______ _   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)                                         AR20140001922





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ABCMR Record of Proceedings (cont)                                         AR20140001922



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