IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100014368 


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 general discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, his recruiter failed to enter his conscientious objector (CO) information into his initial enlistment contract.  He believes the general discharge is unfair due to recruiter malpractice.  

3.  He states he would appreciate an upgrade of his discharge for peace of mind and for his loved ones to be proud of his military service. 

4.  The applicant provides a copy of his DD Form 214. 

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 26 January 1989 for a period of 5 years.  He completed the training requirements and he was awarded military occupational specialty (MOS) 67T (Tactical Transport Helicopter Repairer).  The highest rank he attained was private first class/E-3. 

3.  His records contain a copy of a DA Form 3286-59/1 (Statement of Enlistment United States Army Enlistment Option – U.S. Army Delayed Entry Program) which shows in subparagraph 8, he was enlisted for MOS 67T and he had read and reviewed the job description.  He also acknowledged he understood the general nature of the training he would receive.

4.  A copy of his DD Form 1966/3 (Record of Military Processing – Armed Forces of the United States) shows in item 36e, the following: “Are you a CO?  That is, do you have, or have you ever had, a firm, fixed, and sincere objection to participation in war in any form or to the bearing of arms because of religious training or belief?”  The applicant placed his initials in the box marked “NO.” 

5.  On 21 November 1989, the applicant wrote a letter to his Senator.  He stated in pertinent part, he joined the Army on 16 January 1989 and that while he and his recruiter (sergeant (SGT) K____) were filling out his paperwork he requested information on noncombatant status due to his religious beliefs.  He stated that SGT K_____ told him not to worry about it because he was going into aviation.  He was also told it would require filling out too much paperwork.  Just having graduated from high school, the applicant claimed he believed all he was told. 

6.  He also stated upon his arrival to Fort Campbell, KY he began to seek out information on the program.  On 4 September 1989, he told his company commander he wanted to apply for CO status.  He contends he was called back to the commander’s office on 27 September 1989 and given a few choices.  That same day he was offered a chapter out of the Army and he was told he could keep his G.I. benefits.   He concurred and told the commander to begin the paperwork. 

7.  He contends that on 7 November 1989, he met with the battalion commander who told him that he was not a sympathetic person and that the CO status held no water with him or the Army.  He claims his battalion commander also told him he would not give him the chapter previously offered by his the company commander, and even suggested the applicant change his religious beliefs. 




8.  On 14 December 1989, a congressional inquiry pertaining to the applicant was forwarded to his brigade commander who in turn forwarded the inquiry to his battalion commander for a response.  

9. The applicant's battalion commander stated, in pertinent part, that the applicant had been counseled by the battalion command sergeant major on his options as an individual to seek CO status.  The applicant stated he would not kill but did not discuss an aversion to carrying a weapon.  The battalion commander contended he informed the applicant that it would be highly unlikely he would be placed in a position to kill anyone since he was an aircraft repairman; however, if he desired, he would pursue moving him into a noncombatant MOS.

10.  The battalion commander states the applicant informed him he did not want to reclassify but wanted to get out of the Army.  He also told the applicant to consider what he really wanted and to get back to him; however, he failed to do so. 

11.  On 20 February 1990, the applicant submitted a DA Form 4187 (Personnel Action) requesting CO status and reclassification into MOS 71M (Chaplain Assistant) and noncombat duties.  

12.  A statement, dated 5 March 1990, by a chaplain indicated that the applicant’s claim was based upon a religious belief.  He believed that the applicant was sincere in his beliefs and that the beliefs of the applicant were as deeply held as were other religious beliefs which he professed.

13.  A Report of Mental Status Evaluation, dated 12 March 1990, indicate the applicant was evaluated in conjunction with his request for CO status and that there was no apparent mental disease or disorder which would preclude approval of the status or require a disposition through medical channels.

14.  The applicant's battalion commander recommended disapproval of his request for reclassification.  He noted that it was his personal belief that the applicant was being advised by an outside civilian agency which specialized in assisting Soldiers in ways to get them released from the service.  The brigade commander concurred with the battalion commander's sentiments and as a result, recommended disapproval also.  

15.  On 17 May 1990, the applicant submitted a request for discharge under the provisions of Army Regulation 600-43 (Conscientious Objection).  On 21 May 1990, his company commander recommended approval.  The brigade battalion and brigade commander's recommendations are not in the available records; however, the commanding general recommended disapproval based on the applicant’s failure to properly disclose his beliefs at the time of his voluntary enlistment. 

16.  On 29 May 1990, the applicant was notified that a CO hearing was due to convene on 5 June 1990, pertaining to his request.  He acknowledged receipt and waived his right to be represented by counsel.  

17.  An administrative review of his CO status took place on 14 June 1990 by the Administrative Law Division.  The review stated, in pertinent part, since he indicated he had no fixed CO beliefs in item 3 of his DD Form 1966 it showed a clear lack of sincerity with respect to his beliefs and he may have fraudulently enlisted under the provisions of Army Regulation 635-200 (Enlisted Personnel).

18.  A copy of a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows that on 19 July 1990 the investigating officer recommended that the applicant's request for discharge be denied.  The investigating officer recommended that the applicant be granted CO status with no reclassification, reassignment, or discharge. 

19.  On 21 September 1990, the Department of the Army CO Review Board (DACORB) reviewed the applicant’s request and determined he did not meet the requirements for designation as a CO.  The DACORB opined that he may have been eligible for separation on the basis of an erroneous or defective enlistment since the defect existed prior to his enlistment and it had not changed. 

20.  On 23 November 1990, the commander notified the applicant that separation action was being initiated to discharge him for fraudulent enlistment with a general discharge.  The commander stated the reason for this action was the applicant made a false statement on his DD Form 1966 by claiming he was not a CO, when by his own admission, he truly was.  

21.  In the commander’s recommendation for separation, he noted that nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) was imposed upon the applicant on 17 November 1990 for failure to repair and for disobeying a commissioned officer.  A copy of the Article 15 is unavailable for review. 

22.  On 26 November 1990, the applicant responded accordingly and he consulted with counsel and was advised of the basis for the contemplated separation action for fraudulent enlistment, its effects, and of the rights available to him.  The applicant elected not to submit a statement on his own behalf.  The separation authority approved the separation action and directed that the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 7, by reason of fraudulent enlistment with a general discharge.  

23.  Accordingly, the applicant was discharged on 4 December 1990 under the provisions of paragraph 7-17b(1), Army Regulation 635-200, by reason of fraudulent entry with a General Discharge Certificate.  He had completed 1 year, 10 months, and 9 days of active service with no lost time.    

24.  There is no indication he applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within that board’s 15-year statute of limitations.

25.  Army Regulation 600-43 provides the procedures for applying for CO status.  The regulation states that military personnel who seek either discharge or assignment to noncombatant duties because of conscientious objection will submit an application on DA Form 4187.  Personnel will indicate whether they are seeking discharge or assignment to noncombatant duties.  The interviewing chaplain will advise the CO that any information between the applicant and the chaplain will not be privileged since a detailed report of the interview will become part of the application for consideration.

26.  Army Regulation 600-43, paragraph 1-71 (1), in effect at the time, states that requests for qualification as a CO after entering the military service will not be favorably considered when these requests are based on a claim for CO status that existed and satisfied the requirements for classification as a CO when such claim was not presented before the dispatch of the notice of induction, enlistment, or appointment. 

27.  Army Regulation 635-200, chapter 7 provides the authority, criteria, and procedures for the separation of Soldiers because of minority, erroneous enlistment, re-enlistment or extension of enlistment, defective enlistment agreement, or fraudulent entry.  Paragraph 7-17 contains guidance on separation for fraudulent entry.  It states that fraudulent entry is the procurement of an enlistment, re-enlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or re-enlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  

28.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to an honorable discharge based on his recruiter’s failure to enter the appropriate information on his enlistment contract to show CO status. 

2.  The evidence of record clearly shows the applicant failed to disclose his CO status at the time of his enlistment.  Item 36e, of his DD Form 1966 shows he initialed the “NO” block next to the question: “Are you a CO?”  

3.  The DACORB also determined that the applicant’s claim of CO status did not meet the requirements under the provisions of Army Regulation 600-43.  That board based their decision on his claim of being a CO prior to his enlistment and his failure to disclose it at that time of enlistment.  

4.  The evidence of record also confirms the applicant’s discharge processing was accomplished in accordance with the applicable regulation in effect at the time.  The record further shows all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  

5.  In view of the foregoing, there is no basis to grant the requested relief.  The applicant's general discharge appropriately supports his record of service which includes NJP under the UCMJ for disobeying a commissioned officer.   

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)                                         AR20100014368



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ABCMR Record of Proceedings (cont)                                         AR20100014368



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