IN THE CASE OF:	  

		BOARD DATE:	        9 September 2008

		DOCKET NUMBER:  AR20080011010 


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, in effect, that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he was drafted when he was 19 years old as a conscientious objector to serve as a medic.  He contends that he assured his superiors he could not carry arms; however, at basic training he was told he was training to carry arms and that he would be sent to arms training and then to Vietnam as a combat medic.  He goes on to state that while he was confined he performed duties as a driver, that he never had any disciplinary action, and that he was a trustee.     

3.  The applicant provides a letter, dated 6 June 2008, from a Member of Congress; a copy of his DD Form 214 (Report of Transfer or Discharge); two letters pertaining to his Jehovah’s Witnesses ministry; and two letters supporting his claim of service in the community as a medical professional.

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’s DD Form 47 (Record of Induction), dated 3 June 1966, shows that he was a Class I-A-O conscientious objector.  He was inducted on 3 June 1966.  

3.  While undergoing modified basic training, on 15 August 1966, in accordance with his plea, the applicant was convicted by a summary court-martial of disobeying a lawful command (to start basic training).  He was sentenced to be confined at hard labor for 1 month and to forfeit $35.00.  On 16 August 1966, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 1 month (suspended for 2 months) and forfeiture of $30.00.  On 17 August 1966, the suspended portion of the sentence to confinement was vacated.

4.  On 28 September 1966, in accordance with his plea, the applicant was convicted by a special court-martial of disobeying a lawful command (to commence training).  He was sentenced to be confined at hard labor for
6 months and to forfeit $33.00 per month for 6 months.  On 13 October 1966, the convening authority approved the sentence.  On 30 December 1966, the unexecuted part of the sentence to confinement was suspended for 2 months.   

5.  On 27 January 1967, the applicant submitted a request for discharge under the provisions of Army Regulation 635-20 (conscientious objector).  His request was denied on 12 April 1967.

6.  On 22 May 1967, contrary to his pleas, the applicant was convicted by a special court-martial of disobeying two lawful commands.  He was sentenced to be confined at hard labor for 6 months, to forfeit $37.00 per month for 6 months, and to be reduced to E-1.  On 6 July 1967, the convening authority approved the sentence.

7.  On 14 July 1967, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  

8.  On 14 July 1967, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf. 

9.  The applicant’s records contain a statement, dated 17 July 1967, from the U.S. Army Medical Training Center at Fort Sam Houston, Texas.  This statement states, in pertinent part, that the applicant was assigned to that unit on 11 June 1966 to undergo modified basic training as an I-A-O and that he completed 
5 weeks of training.  At the start of the 6th week of training the applicant decided that he could no longer serve because of his religious beliefs and he refused to train.  The applicant’s company commander informed him that he could submit a request for discharge under the provisions of Army Regulation 635-20; however, the applicant refused to do so because he felt it compromised his religious convictions.  The applicant was court-martialed on two occasions after being ordered to train and refusing both times.  He submitted a request for discharge under the provisions of Army Regulation 635-20 and his request was disapproved.  For a third time the applicant was ordered to train and he refused, which resulted in a court-martial conviction.  This statement states that the applicant was a member of the Jehovah’s Witnesses and at the time of his induction he was not a baptized member.  While he was in confinement, prior to his third court-martial, members of his church went to Lackland Air Force Base and baptized him, thus making him a minister of their faith.

10.  On 12 October 1967, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.      

11.  On 30 October 1967, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 6 months and 29 days of creditable active service with 302 days lost due to confinement.  

12.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. 

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members 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.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  

15.  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’s record of service included one summary court-martial conviction, two special court-martial convictions, and 302 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
 
3.  The applicant’s request for discharge under the provisions of Army Regulation 635-20, presumably because his religious beliefs changed from allowing to serve but without bearing arms to preventing him from serving at all, is not available.  In addition, the applicant elected not to submit a statement on his own behalf at the time.  Without having that discharge packet to consider, it is presumed that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  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.



      ________xxxx__________
               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)                                         AR20080011010



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ABCMR Record of Proceedings (cont)                                         AR20080011010



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