IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100006984 


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 upgrade of his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states he would like his discharge upgraded because he would like to continue his education in order to make a better life for his family and to assist in improving his community.

3.  The applicant also states he would like to show his children it is never too late to make something out of their lives.  This is why he would like his discharge upgraded.

4.   The applicant further states he believes his discharge was improper and inequitable.  He claims he was a good Soldier and always did what he was asked to do.  He claims he took his service in the Armed Forces very seriously.  He claims one day while having problems, he went to church to see if they could help.  The more he went to church the more he questioned if he could kill another human being.  So he asked to be let out of the Army as a conscientious objector and he was released.  He states these are his reasons for wanting his discharge upgraded.  He states that after the events of 11 September 2001, he now believes he could take a life.  He concludes by stating "remember God first and Country second."


5.  The applicant provides a Congressional Inquiry packet in support of his application.

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 record shows he enlisted in the Regular Army on 10 February 1981.  He was trained in and awarded military occupational specialty (MOS) 12B (Combat Engineer) and private first class (PFC)/E-3 is the highest rank/grade he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

3.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 17 August 1981, for failing to go at the time prescribed to his appointed place of duty.  He was also counseled on a number of occasions for missing formation.

4.  On or about 3 March 1982, the applicant’s unit commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
5-31 (Expeditious Discharge Program (EDP)), with a recommendation for a GD.  The unit commander informed the applicant of his right to decline the separation.

5.  On 4 March 1982, the applicant acknowledged the commander’s separation notification and voluntarily consented to the separation action.

6.  On 10 March 1982, the battalion chaplain counseled the applicant and indicated the applicant aligned with the Faith Tabernacle United Pentecostal Church and due to a religious conversion experience believed his conscience would not permit his continuing in the military environment.  He stated the 


applicant believed because of his religious convictions and the doctrinal position of his new church, he could not effectively engage in war involving the defense of his country and due to the stance of his church, he could not effectively fulfill his military obligations on Sundays.  He further stated the applicant jeopardized his status as a Soldier in good standing by receiving an Article 15.  He finally recommended the applicant be expeditiously discharged.  

7.  On 16 March 1982, the separation authority approved the applicant’s separation under the provisions of Army Regulation 635-200, paragraph 5-31, and directed the applicant receive a GD.  On 19 March 1982, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows he completed a total of 1 year, 1 month, and 10 days of active service.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31, then in effect, provided the policy and outlined the procedures for separating individuals under the EDP.  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An HD or GD could be issued under this program.

10.  Paragraph 3-7a of the same regulation provides that an HD 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded because it was improper and inequitable have been carefully considered; however, there is insufficient evidence to support this claim.

2.   The evidence of record confirms the applicant's separation processing under the provisions of the EDP was accomplished in accordance with the applicable regulation.  It further shows his expeditious discharge was recommended by the battalion chaplain and that the applicant voluntarily consented to the discharge 


and elected not to make a statement in his own behalf.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's record reveals he voluntarily entered military service and completed training as a combat engineer.  It further shows he refused to perform required military service due to religious beliefs he acquired after entering military service.  The record is also void of any indication he attempted to apply for conscientious objector status in order to complete his military service obligation in a non-combatant role.

4.  The applicant’s record does reveal a record of disciplinary infractions which included his acceptance of NJP and repeated counseling for missing work and formations.  This misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge.  Therefore, absent any evidence of error or injustice related to his separation processing, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for educational benefits should be addressed to the Department of Veterans Affairs.

6.  In view of the foregoing, there is no basis for granting the applicant's requested 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.



      _____________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.

ABCMR Record of Proceedings (cont)                                         AR20100006984



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)