IN THE CASE OF:	  

		BOARD DATE:	        14 MAY 2009

		DOCKET NUMBER:  AR20090001860 


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 an upgrade of his discharge and a change of his reentry eligibility (RE) code from RE-4 to RE-1.

2.  The applicant states that he entered military service to serve his country.  However, while training for deployment, there were several incidents of conflict between himself and his chain of command that were caused by a difference in religious opinions between himself and his supervisor.  He subsequently received several counseling statements and was threatened with nonjudicial punishment.  He adds that these unofficial statements led him to request a discharge under the conscientious objector program which was eventually changed to a discharge in lieu of a court-martial.  He adds that his supervisor tricked him into waiving his right to have a hearing and carried out an inappropriate and unprofessional discharge.  He further states that he began to fear that if he continued to train and deploy, there was a possibility that he could be intentionally injured or even killed by those with whom he had a conflict.  He accordingly filed paperwork as a conscientious objector as he believed this was the only way to have a peaceful solution with his chain of command.  He also states that he believes he would be a great asset to the Army and would like to continue his service.  He currently holds a bachelor degree and is a proud member of his community.  However, he believes that the other than honorable discharge he received was a grave injustice that needs to be corrected.  He appeals to this Board to upgrade his discharge to honorable and his RE-4 to RE-1.

3.  The applicant states that he provided printouts of articles from the news media; however, there are no enclosures provided in support of his application.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's discharge be upgraded to honorable and his RE-4 be upgraded to an RE-1.

2.  Counsel states that following a careful review of the evidentiary record, it is counsel's opinion that the issues raised by the applicant and his statement advance his contentions and substantially reflect the probative facts needed for an equitable review.

3.  Counsel did not provide any additional documentary evidence in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the U.S. Army Reserve, the Regular Army, the Army National Guard, and the U.S. Coast Guard, the applicant's records show he enlisted in the Regular Army for a period of 3 years and 14 weeks in the rank/grade of specialist/E-4 on 28 March 2005.  He completed basic combat and advanced individual training and was awarded military occupational specialty 92Y (Supply Specialist).  He was subsequently assigned to Headquarters and Headquarters Troop, 3d Armored Cavalry Regiment (ACR), Fort Carson, CO.

2.  During the months of August and September 2005, the 3d ACR deployed to Iraq in support of Operation Iraqi Freedom.  The applicant was scheduled to deploy on 21 August 2005; however, he was excused from deployment and was provided with the opportunity to submit an application for conscientious objector status.  He was accordingly scheduled for deployment on 15 September 2005.

3.  On 8 September 2005, the applicant submitted a DA Form 4187 (Personnel Action) requesting conscientious objector status.  He further requested to be excused from deployment and be assigned duties that provided him minimum conflict with his beliefs pending a final decision of his application.  Additionally, he requested separation from the Army based on this status.

4.  On 9 September 2005, during a discussion with his immediate commander, the applicant informed his immediate commander that he would not get on the plane leaving for Iraq on 15 September 2005.  He claimed that he was being threatened by others because of his religion.  He was subsequently counseled by his platoon sergeant for insubordination and disrespecting a superior commissioned officer.

5.  On 13 September 2005, the applicant was interviewed and counseled by the Command Chaplain, Headquarters, 7th Infantry Division, Fort Carson, CO, regarding his objection to military service.

6.  On the morning of 15 September 2005, elements of the applicant's unit drew weapons and were manifested out to Iraq in support of Operation Iraqi Freedom.  The applicant failed to be present for the flight and missed movement.  The battalion command sergeant major went to the applicant's barracks room but could not find him.

7.  On 15 September 2005, the applicant was counseled by his immediate commander for missing movement, disobeying orders of a superior commissioned officer, and failure to obey an order or a regulation.

8.  On 11 October 2005, an investigating officer (IO) was appointed to conduct an informal investigation into the applicant's conscientious objector claim as required by Army Regulation 600-43 (Conscientious Objection).

9.  On 13 October 2005, the applicant was afforded the opportunity by the IO to appear at a hearing to present evidence in support of his conscientious objector application.  He acknowledged the offer and decided of his own free will not to accept the offer and waived the hearing.

10.  On 18 October 2005, the applicant was counseled by his platoon sergeant for failure to be at time prescribed at his appointed place of duty (morning formation).

11.  On 25 October 2005, the IO submitted a final report of his investigation into the applicant's conscientious objector status.  The IO determined that the applicant's pattern of conduct and participation in religious activities was unsupported and that his application for conscientious objector status began after becoming aware of the undesirable or hazardous duty. The IO further recommended disapproval of the applicant's request for conscientious objector status.

12.  On 25 October 2005, court-martial charges were preferred against the applicant for one specification of failure to go at the prescribed time to his appointed place of duty on divers occasions between or about 15 September 2005 and on or about 19 October 2005; one specification of missing movement of a military flight mission, through design, on or about 15 September 2005; and one specification of disrespecting a superior noncommissioned officer on or about 9 September 2005.  

13.  On 7 and 8 November 2005, the applicant's immediate commander and garrison commander recommended disapproval of the applicant's conscientious objector status.

14.  On 18 November 2005, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).  

15.  On 22 November 2005, the applicant's intermediate and senior commanders recommended approval of the applicant's discharge.

16.  On 23 November 2005, the Staff Judge Advocate, 7th Infantry Division, Fort Carson, CO, reviewed the applicant's conscientious objector application and determined that the evidence presented in his packet supported a disapproval of the application.

17.  On 23 November 2005, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.

18.  On 5 December 2005, the Commanding General, 7th Infantry Division, Fort Carson, CO, recommended disapproval of the applicant's request for conscientious objector status.

19.  On 6 December 2005, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed 8 months and 9 days of creditable active service during this period of enlistment.  Additionally, item 27 (Reentry Code) of his DD Form 214 shows the entry "4."  He was given a separation program designator (SPD) code of "KFS."



20.  On 9 February 2006, by memorandum, the President of the Department of the Army Conscientious Objector Review Board, Office of the Deputy Chief of Staff, G-1, Alexandria, VA, disapproved the applicant's request for conscientious objector status.

21.  On 14 March 2008, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.

22.  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.

23.  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.

24.  Army Regulation 635-200 states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes).  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

25.  The SPD/RE Code Cross Reference Table states that when the SPD code is "KFS" then RE-4 is given

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded and his RE code should be corrected.
2.  Contrary to the applicant's contention that he was tricked into waiving his right to a hearing with a judge, there is no evidence that the applicant was tricked or misinformed about his contemplated discharge.  The applicant's written request certified that he had been counseled and understood his rights.  Additionally, there is no legal or regulatory requirement for a hearing with a judge in the applicant's case.

3.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The evidence of record further confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The RE code associated with this type of discharge is RE-4.  Therefore, the applicant received the appropriate RE code associated with his discharge.

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the character of his discharge and the RE code are in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  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.



      ________XXX_________________
                 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)                                         AR20090001860



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ABCMR Record of Proceedings (cont)                                         AR20090001860



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