BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150010242 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ __x______ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150010242 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 AR2004104604, dated 9 December 2004, and Docket Number AR20050004281, dated 24 March 2005. ___________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. BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150010242 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 requests for amendment of his discharge under other than honorable conditions to a hardship discharge. As new issues, he appeals his induction and requests monetary restitution for 45 years of damage inflicted on himself and his family. 2. The applicant states: a.  His induction in October 1967 was in error. b.  He has waited 47 years for an upgrade of his discharge and he is very tired and angry and his patience is vague, thin, and weary. All his efforts have been hopeless and nobody really truly cares. He is spent. c.  He should never have been inducted. The Army is responsible and the U.S. Government should pay him restitution for the damages inflicted and the scars it has left on him and his family for the last 45 years. It is way overdue for the Army to pay for the pathetic unwritten crime it committed. d.  He tried to obtain a hardship discharge on three occasions. e.  His demands are clear and if they are not met he will proceed with litigation. f.  He has been denied membership in the local veterans' unit due to his type of discharge. He expects nothing less than satisfactory results. The gross injustice has gone on way too long and he is at the end of his rope. His tolerance is completely exhausted with the entire affair. If the Board's decision does not meet his expectations this time, he will seek other action. 3. The applicant provides: * Congressional correspondence * self-authored statements * previously submitted self-authored statements * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 (Correction to DD Form 214) * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * hardship discharge request extracts * Army Board for Correction of Military Records (ABCMR) Docket Number AR2004104604, dated 9 December 2004 * ABCMR Docket Number AR20050004281, dated 15 November 2005 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 AR2004104604, dated 9 December 2004, and Docket Number AR20050004281, dated 24 March 2005. 2. The applicant provides new arguments not previously considered that warrant consideration at this time. 3. On 2 October 1967, he was inducted into the Army of the United States after an appeal of his induction was denied. 4. On 24 April 1968, he submitted a request for a hardship discharge to care for his mother. In his request, he indicated: * he would be the sole support for his family once his sister married * he was the main support for his family prior to his induction * his mother's health was unsatisfactory due to extreme nervousness precipitated by his induction * his mother had been unable to work for 28 years * he had three sisters and only one sister assisted his mother financially * his father was hospitalized and had no income 5. On 1 May 1968, he submitted a sworn statement restating his need for a hardship discharge. 6. On 27 May 1968, his request for a hardship discharge was denied. The approval authority noted that every reasonable effort had not been made to alleviate the dependency condition and other members in his family had a moral obligation to assist during the period of his military service. 7. On 2 July 1968, the applicant was absent without leave (AWOL) and remained so absent until he returned to military control on or about 29 September 1968. 8. Headquarters, 46th General Support Group, Special Court Martial Order Number 122, dated 31 October 1968, shows he pled guilty and was found guilty of being AWOL on or about 2 July 1968 until on or about 30 September 1968. 9. In November 1968, he again applied for a hardship discharge. His request was again denied. His commanding officer noted, in part: Examination of [the] application with supporting documentation does not indicate that an undue or genuine dependency/hardship exists as a result of a disability of [the] applicant's father occurring after his entry into active military service. The condition of [the] applicant's father existed prior to his entry into active military service and the condition has not been aggravated to such an extent as to necessitate care and support by the applicant. In addition, application has been reviewed from the financial aspect and does not indicate that discharge or release from active military service of the applicant is the only readily available means of eliminating or materially alleviating the hardship condition in that applicant can supplement his mother's income from his military pay… 10. He was AWOL on 16 December 1968 and he returned to military control on 14 January 1969. He was AWOL again on 15 January 1969 and he returned to military control on 9 March 1969. 11. Records show he was tried and convicted by a special court-martial on 2 April 1969 for being AWOL from on or about 16 December 1968 to on or about 14 January 1969 and from on or about 15 January 1969 to on or about 9 March 1969. 12. On 17 April 1969, he underwent a psychiatric evaluation. He was diagnosed with passive-aggressive personality. His evaluation shows: * he was found mentally responsible to distinguish right from wrong and adhere to the right, and able to understand and participate in administrative proceedings * he met medical retention standards * he was psychiatrically cleared for any administrative action deemed appropriate by his command * he believed he should not have been in the service because his family needed his help * he came from an unstable family background marked with emotional and financial problems * his parents had been separated since he was 8 years old * he dropped out of high school in the 11th grade to support his mother * he began using drugs while he was AWOL * he related he had no desire to complete his military service 13. On 14 May 1969, he was advised by counsel of his commander's contemplated separation action against him for unfitness. He waived consideration of his case before a board of officers and a personal appearance before a board of officers. He elected not to submit statements in his own behalf. He acknowledged that he could encounter substantial prejudice in civilian life and he would be ineligible for many or all benefits as a veteran under Federal and State laws. 14. On 27 May 1969, action was taken to separate the applicant from the Army under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of frequent incidents of a discreditable nature with military authorities. His commander recommended issuance of an undesirable discharge. 15. On 5 June 1969, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-212 with an undesirable discharge. 16. On 10 June 1969, he was discharged accordingly. 17. On 14 June 1974, the Army Discharge Review Board denied his request for an upgrade of his discharge. 18. On 9 December 2004 and 15 November 2005, the ABCMR denied his requests for an upgrade of his undesirable discharge. 19. He provided self-authored statements wherein he stated: a.  He and his mother appeared before a draft board committee and argued that he was the sole surviving son and his father left the family never to return when he was a child. The appeal of his draft was denied. b.  He was AWOL because his request for a hardship discharge was denied and he was disappointed, angry, depressed, and desperate. His judgement became disoriented. c.  He was AWOL a second time because he felt there was no hope and he did not care about his future in the Army. He just wanted to get out. He was court-martialed and detained. His sister was tragically killed 2 weeks later in an accidental fire and he firmly believed this led to his undesirable discharge. d.  He disagreed with the Vietnam War and he should never have been drafted. REFERENCES: 1. Army Regulation 635-212, in effect at the time, provided the basic authority for the separation of enlisted personnel for unfitness or unsuitability. This regulation provided, in part, that Soldiers involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate under this provision. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), also in effect at the time, provided the authority for separation of enlisted personnel prior to and upon expiration of term of service; voluntary retirement of enlisted personnel of the Regular Army by reason of length of service; and issuance of Honorable, General, and Undesirable Discharge Certificates. 3. Army Regulation 635-200, chapter 6, provided that separation because of hardship would be granted when all of the following circumstances existed: a.  conditions had risen or had been aggravated to an excessive degree since entry on active duty, b.  conditions were not of a temporary nature, c.  every reasonable effort had been made by the enlisted person to alleviate the hardship conditions without success, and d.  discharge or release from active duty was the only readily available means of eliminating or materially alleviating the hardship condition. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. The Selective Service System is an independent Federal agency operating with permanent authorization under the Military Selective Service Act. It is not part of the Department of Defense; however, it exists to serve the emergency manpower needs of the military by conscripting untrained manpower if directed by Congress and the President in a national crisis. DISCUSSION: 1. The Army and the Department of Defense has no jurisdiction over the Selective Service System. After hearing his contentions, this independent agency determined he was qualified for induction into the Army. 2. Although the applicant disagreed with denial of his hardship requests, the evidence of record shows his command considered his situation and offered him options. His dissatisfaction with his command's decision or any family matter at home was not a valid reason to be AWOL. 3. There is a presumption of administrative regularity in the conduct of governmental affairs. This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption. In this instance, the presumption of regularity is based upon: a.  Army Regulation 635-212, which provided the procedures for separation and specific guidance in determining the character of service and description of separation; and b.  Army Regulation 635-200, chapter 6, which provided the procedures and specific guidance in determining dependency and hardship. 4. The evidence of record shows all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 5. Although he believes he is entitled to monetary restitution for damages inflicted upon himself and his family for the last 45 years, he failed to provide evidence to support this claim. 6. The ABCMR does not amend and/or correct military records solely for the purpose of making an applicant eligible for benefits. Each case is individually considered based on the evidence of record and the evidence presented. 7. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant failed to submit evidence that would satisfy this requirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010242 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010242 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2