IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100014330 


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 that his bad conduct discharge (BCD) be upgraded to an honorable discharge.

2.  He states at the time of his actions, the Army had no Muslim chaplain to help young Soldiers like him deal with U.S. conflicts in predominately Muslim countries.  Between 1990 and 1992, he endured mistreatment and threats from fellow Soldiers.  He was an excellent Solider until Operation Desert Storm occurred.  The Army has since reversed its position of providing no religious accommodations (no Muslim chaplains) in 1990, to providing Army Muslim Chaplains now.  He would have earned an honorable discharge if he had been given the same accommodations and guidance that current Muslim Soldiers receive. 

3.  He provides his:

* Certificate of Conversion to the Religion of Islam
* Practice of Religious Belief request
* Two DA Forms 4856 (General Counseling Form)
* DA Form 4126-R (Bar to Reenlistment Certificate)
* Letters from a Member of Congress and the National Association for the Advancement of Colored People (NAACP)
* Conscientious Objector Status request package
* General Court-Martial orders
* Letter from counsel
* DD Form 214 (Certificate of Release or Discharge from Active Duty) and separation orders.

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 military records show he enlisted in the Regular Army (RA), in pay grade E-1, on 13 July 1988, for 4 years.  At the time of his enlistment, he acknowledged he understood the Army would accommodate religious practices when accommodations would not have an adverse impact on military readiness, unit cohesion, health, safety, or discipline.  He completed training and he was awarded military occupational specialty 76P (Materiel Control & Accounting Specialist).  His records show the highest grade he attained was pay grade E-4.

3.  On 14 January 1990, he was issued a Certificate of Conversion to the Religion of Islam.  On 24 January 1990, his company commander approved his request to practice his religious beliefs.  He was advised of the requirement to fulfill all required military duties and those duties took priority over all other matters.  

4.  On 8 November 1990, he received counseling concerning his performance on the recent skill qualification test (SQT).  On 14 November 1990, he received counseling concerning his refusal to be deployed in support of Operation Desert Shield/Storm due to religious reasons.

5.  On 15 November 1990, a bar to reenlistment was initiated against him.  The bar was approved on 21 November 1990 and he elected not to appeal the bar.

6.  In a letter dated 23 December 1990, the NAACP advised his commander that several members had filed a grievance with that organization pertaining to the violation of their constitutional rights as well as their rights dealing with accommodating religious practices.
7.  On 3 January 1991, he requested conscientious objector status under the provision of Army Regulation 600-43 (Conscientious Objector).  In his request, he stated that he was harassed and persecuted by his command for his religious beliefs.   After interviewing the applicant, the brigade chaplain stated the applicant stated that he had always been strongly opposed to violence of any kind.  He did not believe in what he was called to do and could never kill anyone, even if his own life was in danger.  The chaplain stated that he believed the applicant was sincere and honest in his religious beliefs, would not consider a non-combatant status as an alternative to staying in the Army, and desired to be discharged and make a life for himself as a civilian.

8.  All the documents containing the facts and circumstances surrounding the outcome of his request for a conscientious objector discharge are not present in his available records. 

9.  On 31 January 1991, he requested a release from the Army because of the injustice within his command.  

10.  On 9 September 1991, he was convicted by a general court-martial of one specification of failing to go to his appointed place of duty on 26 January 1991, one specification of being disrespectful towards his superior commissioned officer on 27 January 1991, two specifications of willfully disobeying a non-commissioned officer to assist the members of the unit in preparation for unit deployment on 27 and 28 January 1991, and one specification of being absent without leave (AWOL) from 11 March to 29 July 1991.  He was sentenced to a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 11 months, and a BCD.  

11.  On 18 December 1991, the convening authority approved only so much of the sentence as provided for reduction, forfeiture of pay, and confinement for 8 months, and except for the BCD, ordered the sentence duly executed.

12.  On 27 January 1992, the applicant was advised that his record of trial had been forwarded to the Defense Appellate Division and after review it would be forwarded to the U.S. Court of Military Review.

13.  On an unspecified date, the U.S. Army Court of Military Review approved the findings of guilty and found the sentence correct in law and fact and affirmed the entire sentence, to include the BCD.

14.  General Court-Martial Order Number 138, dated 19 October 1992, published by the U.S. Army Armor Center, Fort Knox, KY, ordered the applicant’s BCD duly executed and found that the part of the sentence extending to confinement had been served.

15.  On 4 November 1992, he was discharged in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, as a result of a court-martial, and with a BCD.  He was credited with 3 years, 5 months, and 29 days of net active service and time lost from 11 March to 28 July 1991 and 9 September 1991 to 13 February 1992.  

16.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 stated a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

17.  Army Regulation 635-200, paragraph 3-7a, also provided an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-200, paragraph 3-7b, further provided a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

19.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.

20.  Army Regulation 600-43, then in effect, established the uniform standards for processing conscientious objector applications during mobilization.  The regulation stated military personnel who sought discharge or reassignment to non-combatant duties because of conscientious objection could submit an application on DA Form 4187 to their immediate commander.  An assigned chaplain would submit a detailed report of an interview with the member to the commander.  A Soldier who submitted an application and who was assigned or attached to a unit deploying would not be precluded from deploying with the unit. When a request had been denied the person would comply with the reassignment orders and could be assigned to any duties or be required to participate in any type of training.  Persons determined to meet the criteria for classification normally would be discharged "for the convenience of the Government" and issued an honorable or a general discharge.

21.  Army Regulation 600-34 also states a conscientious objector application does not prevent trial at court-martial.  A convening authority may approve the findings and sentence of a court-martial conviction even if the applicant has a conscientious objector claim pending.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was provided no religious accommodations and if he had been, he would have been honorably discharged.  The evidence shows he enlisted in the RA on 13 July 1988 and acknowledged the Army would accommodate religious practices when accommodations would not have an adverse impact on military readiness, unit cohesion, health, safety, or discipline.  He converted to the Religion of Islam on 14 January 1990.  He was granted approval by his command to practice his religious beliefs on 24 January 1990.  He was also advised he was required to fulfill all military duties and those duties took priority over all other matters.  

2.  The evidence also shows on 8 and 14 November 1990, respectively, he received counseling concerning his performance on the SQT and his refusal to be deployed in support of Operation Desert Shield/Storm due to religious reasons.  On 21 November 1990, a bar to his reenlistment was approved.  On 3 January 1991, he requested conscientious objector status and stated he was being harassed and persecuted by his command for his religious beliefs.  The applicant informed the brigade chaplain he had always been strongly opposed to violence of any kind and did not believe in what he was called to do and could never kill anyone, even if his own life was in danger.  

3.  The evidence of record shows he was convicted by a general court-martial of failing to go to his appointed place of duty, being disrespectful towards his superior commissioned officer, twice willfully disobeying a non-commissioned officer to assist the members of the unit in preparation for unit deployment, and being AWOL.  If his claimed religious position in regard to war was the reason for his misconduct, he had the opportunity to raise this issue at his trial.  He was discharged on 4 November 1992 pursuant to the sentence of a general court-martial and he was issued a BCD.

4.  There is no evidence of record and he submitted none concerning a determination of conscientious objector status.  Failure to complete a determination on conscientious objector status does not prevent action by the convening authority in approving or executing a court-martial sentence.  

5.  The applicant has not shown that his chain of command contributed to his misconduct and the issuance of the BCD.  There is also no evidence that his treatment was unjust or inequitable.  He has provided no evidence or argument sufficient to show his discharge should be upgraded.  He was properly discharged and the discharge appropriately characterized the misconduct for which he was convicted.

6.  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.  Given the applicant's undistinguished record of service from 1989 to 1991 and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20100014330



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ABCMR Record of Proceedings (cont)                                         AR20100014330



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