MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 March 1999                   
	DOCKET NUMBER:   AC98-09699
                                              AR1998014344

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Curtis L. Greenway		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his undesirable discharge be upgraded to honorable.

APPLICANT STATES:  That he volunteered for the Army at 15 (sic) years of age and should receive an honorable discharge due to his fraudulent enlistment. In support of his application he submits copies of his birth certificate and baptismal certificate showing his date of birth as 16 May 1932.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed personnel records, which show:

He enlisted in the Army on 2 June 1948.  He was trained as a cook and attained the rank of private.  He served with the 84th Tank Battalion, Fort Knox, Kentucky from June to August, 1948, and with the 7011th Cavalry Detachment, Fort Myer, Virginia from August, 1948 to December, 1949.

On 27 December 1949 the applicant was discharged under the provisions of Army Regulation 615-368 for unfitness.  The board of officer’s findings and recommendations are not available in the record.  The applicant was issued an Undesirable Discharge Certificate.  He completed 1 year, 4 months and 16 days of creditable active service and had 53 days lost time.

The applicant’s discharge certificate indicates his date of birth as 16 May 1929, making him 19 years old at the time of his enlistment and 20 years of age upon discharge.  His birth certificate and baptismal certificate now show he was actually 16 years of age at enlistment and 17 years and 7 months of age at separation.

On 27 December 1979 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He was scheduled for a personal appearance in April 1981 but failed to show.  The ADRB attempted to perform a records only type review, however, there was insufficient evidence available in his official military personnel file for a hearing.  Therefore, the ADRB found the applicant ineligible for further review by that board.

Title 10, United States Code, section 505a, provides that the minimum statutory age for enlistment in the Army is, and was at the time of the applicant’s enlistment, 17 with parental consent and 18 without.  Accordingly, an individual 

under the age of 17 is statutorily incompetent to acquire military status (United States vs Blanton, 7 U.S.C.M.A. 664, 23 C.M.R. 128 (1957)), but the government may show a constructive enlistment where such an individual enlists and continues to serve after reaching age 17 despite the fact that parental consent is never obtained (United States vs Catlow, 23 U.S.C.M.A. 142, 48 C.M.R. 758 (1974)).  Constructive enlistment is based upon two elements: (1) the voluntary performance of military duties, and (2) the acceptance of military benefits (United States vs Brodigan, 50 C.M.R. 419 (N.C.M.R. 1975)).

Army Regulation 615-368, then in effect, set forth the basic authority for the separation of enlisted personnel for unfitness.  It stated, in pertinent part, that soldiers could be separated for unfitness for habits or traits of character manifested by antisocial or amoral trend, chronic alcoholism, drug addiction, misconduct, unclean habits, including repeated venereal infections, repeated commission of petty offenses not warranting trial by court-martial, habitual shirking, or a recommendation by medical authorities indicating that the member possessed an antisocial personality.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Lacking evidence to the contrary, administrative regularity is presumed in the applicant’s administrative separation under the provisions of Army Regulation 
615-368 for unfitness.

2.  Although it now appears the applicant was only 16 years old when he enlisted, he served on active duty past his 17th birthday and received appropriate military benefits for such service.  Therefore, he met the required elements for a constructive enlistment.

3.  The applicant’s contention that his undesirable discharge should be upgraded to honorable on the basis that he was a minor at the time of his enlistment is without merit, considering that he apparently lied about his age in order to join the Army.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

____X____  _____X___  ____X____  DENY APPLICATION

						Loren G. Harrell
						Director