RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 November 2007
	DOCKET NUMBER:  AR20070006133 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Mr. Lester Echols

Member

Mr. Jeffrey Redmann

Member

	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, in effect, that his bad conduct discharge be upgraded to an honorable discharge or a general discharge.  

2.  The applicant states, in effect, that he was unjustly punished and imprisoned for believing in God's Law "Thou Shalt Not Kill."  He states, in effect, that he did not go to Canada nor did he go absent without leave (AWOL).  He did want to serve his country.  He did not want to be put in a position that would require him to commit murder.  He is a religious man who regularly attends church and has no criminal history or arrests since his separation from active duty. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 29 December 1969. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was inducted into the Army of the United States on 18 July 1968 for a 2-year enlistment period.  He successfully completed basic combat training but did not complete advanced individual training.  He was not awarded a military occupational specialty.  He was in advanced individual training for the military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was private first class/pay grade E-3.



3.  On 4 March 1969, records show the applicant requested Conscientious Objector classification under the provisions of Army Regulation 600-200 (Enlisted Personnel Management System). 

4.  On 14 March 1969, the applicant met with his Advanced Individual Training company commander and informed his company commander that he was a conscientious objector, and that his second request for conscientious objector status had been disapproved and that he would not participate in the scheduled unit training program.  The company commander ordered the applicant to attend unit training as directed by the company training schedule.   The applicant refused to obey the direct order of his company commander to attend the scheduled unit training.

5.  On 22 May 1969, the applicant was convicted by a general court martial of violating Article 90, Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from his superior commissioned officer.  His sentence consisted of confinement for one year, reduction to private/pay grade E-1, forfeiture of all pay and allowances, and a bad conduct discharge.  There were no previous convictions considered.

6.  On 6 August 1969, the convening authority approved the sentence and ordered the applicant confined to the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas and forwarded the record of trial to The Judge Advocate General of the Army for review by a Court of Military Review. 

7.  Records show the applicant was confined on 28 August 1969 to USDB, Fort Leavenworth.

8.  On 9 December 1969, the United States Army Court of Military Review affirmed the findings of guilty and approved the sentence except for that part extending to confinement in excess of 9 months.

9.  On 6 January 1970, the Army Clemency and Parole Board reviewed the applicant’s case.  On 12 January 1970, the Office of the Provost Marshal General forwarded a letter to the applicant, which shows the Army Clemency and Parole Board denied his clemency request. 

10.  The applicant's DD Form 214 shows that he was discharged on 29 December 1969 under the provisions of Army Regulation 635-200 (Personnel Separations) because of a conviction by a general court-martial.  His service was 

characterized as under conditions other than honorable and issued a Bad Conduct Discharge Certificate.  The applicant had 221 days of time lost due to confinement during this period of service under the provisions of Title 10, United States Code, Section 972.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

12.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

13.  Army Regulation 635-200, paragraph 3-7a, 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.

14.  Army Regulation 635-200, paragraph 3-7b, 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 should be upgraded because he was a conscientious objector at the time and he did not want to violate God's Law of "Thou Shalt Not Kill."

2.  In this regard, the applicant's request for classification as a Conscientious Objector was denied twice.  When his requests were denied, he was obligated by law to obey the lawful orders of his superiors.  The applicant's failure to obey a lawful order was a violation of the Uniformed Code of Military Justice.

3.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The ABCMR does not upgrade discharges based solely on the passage of time.

5.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offense for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.  

6.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable or general discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JE____  __LE  ___  __JR ___  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 for correction of the records of the individual concerned.




____James Anderholm_______
          CHAIRPERSON



INDEX

CASE ID
AR20070006133
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071101
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.6800
2.

3.

4.

5.

6.