RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            5 August 2004
      DOCKET NUMBER:   AR2004105750


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Michael J. Fowler             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Linda Barker                  |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be upgraded from under other
than honorable conditions to an honorable discharge.

2.  The applicant states that his discharge was inequitable because it was
based on one isolated incident in eight months of service with no other
adverse action.

3. The applicant further states that he was told at the time of his
discharge, if he did not get into trouble for 15 months, his discharge
would be changed to honorable.

4.  The applicant provides a DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge), with an effective date of 9 August 1967,
and four letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 August 1967, the date of his separation.  The application
submitted in this case is dated 12 March 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was inducted on 19 July 1966.  He completed modified
basic training and on the job training (OJT) in the military occupational
specialty 70A10 (Clerk).

4.  The applicant's service personnel records do not contain all of the
applicant's separation processing documentation.  However, the applicant's
records contain the Special Court-Martial Orders (SCMO), chaplain
evaluation, and mental hygiene documentation from Fort Sam Houston, Texas
and Fort Leonard Wood, Missouri.

5. The applicant's service personnel records contain a consultation
certificate, dated 31 August 1966, from the Mental Hygiene Consultation
Division, Office of the Surgeon, Fort Sam Houston.  The certificate shows
that the applicant underwent a psychiatric examination that was conducted
by a Medical Corps psychiatrist.  This examination showed that the
applicant "refused to salute the flag and indicated he will possibly refuse
some training because it violates his religious convictions."

6.  The psychiatrist concluded that the applicant had no apparent
psychiatric disorders, that his present difficulties are primarily related
to long standing religious beliefs, that he was mentally responsible to
distinguish right from wrong, that he has no mental disease or defect, and
that there was no contraindication for any action or decision deemed
appropriate by the command.

7.  On 20 September 1966, the applicant was convicted by a Special
Court-Martial of violation of the Uniform Code of Military Justice, Article
92 for failing to present arms while in retreat formation during playing of
"To the Colors" and Article 90 for willfully disobeying a lawful command.
The applicant's sentence consisted of confinement at hard labor for three
months and forfeiture of $33.00 for three months.

8.  The applicant's service personnel records contain a letter, dated
22 November 1966, from Headquarters, United States Army Medical Training
Center, Fort Sam Houston to the Clerk, Selective Service Local Board Number
125, Long Beach, California requesting verification of the applicant's DD
Form
47 (Record of Induction), dated 19 July 1966.  Item 14 (Conscientious
Objector) showed an ink entry check indicating the applicant was classified
1-0 [people, by reason of religious, ethical, or moral belief, are opposed
to participation in war in any form].

9.  The letter further stated that a copy of the DD Form 47, on file at the
United States Personnel Service Support Center, at Fort Benjamin Harrison,
Indiana, showed no entry in Item 14 (Conscientious Objector).

10.  Evidence of record shows that the applicant was absent without leave
(AWOL) from 30 November 1966 through 27 December 1966.  The applicant's
record further shows that he surrendered himself to the Provost Marshal
Office, at Fort MacArthur, California on 28 December 1966.  The applicant
was returned to Fort Sam Houston and confined at Lackland, Air Force Base,
Texas, on
9 January 1967.

11.  The applicant's service personnel records contain a letter, dated 1
December 1966, from the California Headquarters, Selective Service System,
Sacramento, which states that the applicant's "selective service file does
not contain information indicating that the applicant requested a
conscientious objector classification prior to his induction into service."
 Item 14 of his DD Form 47 file copy record of induction is blank.

12.  The applicant's service personnel records contain a consultation
addendum certificate, dated 9 January 1967, from the Chief, Mental Hygiene
Consultation Division, Fort Sam Houston.   The letter is an addendum to the
consultation certificate, dated 31 August 1966.  The chief psychiatrist
stated that the finding were essentially the same, with the following
additions and corrections:

      a.  "The applicant can be diagnosed as #3210, emotional instability,
manifested by impulsivity, poor control of hostility, passive
obstructionism, and general immaturity; chronic, with moderate to severe
impairment for further military service."

      b.  "Further rehabilitation measures within the military service will
probably be ineffective."

      c.  "It is highly unlikely that the applicant will be suitable for
further military service, and administrative elimination under applicable
Army Regulation."

13.  The applicant's service personnel records contain a Chaplain
Evaluation, dated 20 January 1967, from the Senior Chaplain, United States
Army, Medical Training Center (USAMEDTC), Fort Sam Houston.  The chaplain's
evaluation shows that the applicant stated that he never requested a
conscientious objector's classification from the Selective Service Board.
The chaplain continued that the applicant stated he did not take the oath
of office at the induction station.  Even though he was taken into the Army
as an I-A [available for military service], he was reclassified I-A-O
[people, by reason of religious, ethical, or moral belief, are opposed to
killing in war in any form and to bearing arms but do not object to
performing noncombatant duties in the military] at Fort Ord, California and
sent to Fort Sam Houston, Texas.

14.  The chaplain's evaluation shows that the applicant further stated "he
told authorities at Los Angles and Fort Ord as well as those at Fort Sam
Houston, that he could not conscientiously serve in the Army."  The
chaplain indicated in his evaluation that, "Jehovah Witnesses teach their
members not to be a member of human organizations and the Army is
considered one of these organizations."  The chaplain concluded that the
applicant is a sincere member of the Jehovah's Witnesses.

15.  On 25 January 1967, the applicant was convicted by a Special Court-
Martial of violation of the Uniform Code of Military Justice, Article 90
for disobeying a lawful command and Article 86 for unauthorized absence
without leave from 30 November 1966 through 28 December 1966.  The
applicant's sentence consisted of confinement of hard labor for six months
and forfeiture of
$37.00 for six months.

16.  On 30 January 1967, the applicant requested separation from the
service as a conscientious objector under the rules and procedures in
effect at that time.  The applicant stated he was born and raised as a
Jehovah's Witness and felt it wrong to participate in war on the grounds of
his religious convictions.

17.  The applicant's records contain Special Court-Martial Order Number
10, dated 2 February 1967 at Fort Sam Houston indicating the unexecuted
portions of confinement at hard labor pertaining to the applicant was
remitted.

18.  On 20 February 1967, the applicant requested assignment to a non-
medical unit.  The applicant stated "as a Jehovah's Witness I do not wish
to accept the transfusion of blood from one person to another."  In an
attached letter with the same date the Senior Chaplain of the USAMEDTC,
recommended that the applicant "be trained and utilized in an area other
than the medical service."

19.  The applicant's service personnel records contain a letter, dated 23
March 1967, addressed to the Director of the Selective Service System, in
Washington, D.C. from the United States Army Adjutant General requesting an
advisory opinion and investigation to determine if the applicant was
eligible to be classified as a conscientious objector by reason of his
religion.

20.  On 19 April 1967, Special Orders Number 82 reassigned the applicant to
the United States Army Training Command at Fort Leonard Wood, Missouri.

21.  On 20 April 1967, the applicant requested withdrawal of his request
for separation from the service as a conscientious objector.

22.  The applicant's service personnel records contain a letter, dated 24
April 1967, addressed to the Adjutant General of the Army from the Director
of the Selective Service System.  This letter responded to the request for
an opinion on the applicant's request for classification and separation as
a conscientious objector.  The Director of Selective Service System wrote "
it was his opinion that the applicant would not be classified as a
conscientious objector if he were being considered for induction at this
time."

23.  The applicant's service personnel records contain a letter, dated 6
May 1967, from the Commanding General of the Fourth United States Army to
the Commanding General of Fort Sam Houston.  The letter shows that the
Adjutant General of the United States Army did not favorably consider the
applicant's request for separation as a conscientious objector.

24.  The applicant's service personnel records contain a report of
psychiatric evaluation, dated 16 June 1967, from the Mental Hygiene
Consultation Division, Fort Leonard Wood, Missouri.  A Medical Corps
psychiatrist conducted a psychiatric evaluation, which showed that the
applicant's psychiatric and mental condition was "Passive Aggressive
Personality-Aggressive Type."

25.  The psychiatrist stated that the applicant was evaluated because of
"unsuitability for military service."  The psychiatrist further stated that
the applicant was an aggressive and angry person, but did not suffer from
mental or emotional illness.  The psychiatrist concluded that the applicant
was cleared for any administrative action thought to be appropriate by
command.

26.  The applicant submitted a letter of support from an associate, dated
24 January 2001, which stated that he has known the applicant for 17 years.
 The author further stated that "We are good friends and have done many
things together over the years.  He is in good standing with many people
and a good citizen."

27.  The applicant submitted a letter of support from an associate, dated
10 February 2001, which stated that she has known the applicant for 17
years.  The author further stated that "the applicant is an upstanding
citizen in the community and a personal friend of mine who has never turned
me away when I needed help."

28.  The applicant submitted a letter of support from a Probation Officer
of the Seiver County Municipal Court, dated 19 February 2001, which stated
that he has known the applicant for 10 years.  The author further stated
that "The applicant is an honest and decent man.  His integrity is above
reproach.  As a businessman his reputation is as fair as they get."

29.  The applicant submitted an undated letter from an associate, which
stated that he has known the applicant since 1982.  The author stated that
"We have become very good friends, whom I would not hesitate to ask for
help and he has been a welcome guest in my house and I in his."

30.  On 9 August 1967, the applicant received an undesirable discharge,
under conditions other than honorable, in accordance with Army Regulation
635-212.  He had completed 8 months, and 10 days of creditable active
military service with 134 days of lost time due to AWOL and confinement.

31.  Army Regulation 635-212, then in effect, set forth the policy and
procedures for administrative separation of enlisted personnel for
unfitness. It provided, in pertinent part, for discharge due to unfitness
because of apathy of those individuals who displayed a lack of appropriate
interest and/or an inability to expend effort constructively.  When
separation for unfitness was warranted an honorable or general discharge
was issued as determined by the separation authority based upon the
individual's entire record.

32.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits

provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise
so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

33.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge was inequitable, because it
was based on one isolated incident in eight months of service with no other
adverse action.

2.  Evidence of record shows that the applicant was convicted by two
special courts-martial.  Therefore, his contention that his discharge was
based on one isolated incident is contrary to the facts in this case.

3.  The applicant's records do not contain all of his separation processing
documents.  In the absence of evidence to the contrary, it is presumed that
the applicant's separation was accomplished in compliance with applicable
regulation and without procedural errors that would jeopardize his rights.

4.  The applicant requests that his discharge be upgraded to an honorable
discharge.  However, his records show that he was convicted two times by
special courts-martial.  Based on these facts, the applicant’s service
clearly did not meet the standards of acceptable conduct and performance of
duty for Army personnel which are required for issuance of an honorable
discharge.

5.  Based on the applicant’s multiple offenses, his record of service did
not meet the regulatory standard of satisfactory service.  In the absence
of a record of satisfactory service, the applicant is not entitled to a
under honorable conditions discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 August 1967; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
8 August 1970.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to file in this case.
BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___rtd___  __wtm___  ___lb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Walter T. Morrison____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105750                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2004/08/05                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |