IN THE CASE OF:	  

		BOARD DATE:	    16 May 2013

		DOCKET NUMBER:  AR20120016208 


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 removal of the conscientious objector reason for his discharge from his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).  He further requests change of his reentry eligibility (RE) code from RE-3 to RE-1.

2.  He states:

	a.  he desires these changes to his NGB Form 22 so he can reenter the armed forces.

	b.  he was honorably discharged from the California Army National Guard (CAARNG) on 19 August 1991 after completing 1 year of service.  He was immature and he did not understand the meaning of true service and sacrifice when he was 18 years old.

	c.  he was always respectful to his superiors and continued to perform his duties even though he requested his contract to end early.  His superiors pitied him and allowed him to be honorably discharged.  He was not present to sign his NGB Form 22, but he was mailed a copy shortly after his discharge.

	d.  he was naive back then and he does not believe he would have disputed his discharge reason or RE code.  He understands he does not deserve clemency for the mistakes he made during his youth and a favorable response to his request would be an act of mercy from the Board.


	e.  he turned his back on God and his country when he was 18 years old.  He ran away from the very purpose the Lord had etched into his heart since childhood, which was to protect the defenseless.  Over the past 20 years, he has gained clarity concerning what is important in life.  He realized that what matters is doing God's will regardless of the cost of his life.

	f.  he tried to enlist in the Texas ARNG (TXARNG) in February 2011.  For over 10 months, recruiters worked on a waiver packet, which included all the necessary testing and security clearances.  However, he was denied reenlistment by the Texas Adjutant General's office because Army Regulation 601-210 (Active and Reserve Components Enlistment Program), paragraph 4-23 dictates that discharge by reason of conscientious objector cannot be waived.

	g.  he applied to Army Review Boards Agency on 7 May 2012, but his request was returned without action because he had not exhausted all administrative remedies by applying to his State Adjutant General.  He then applied to Texas Adjutant General and he was directed to apply to this Board.  He is employed and he is not seeking to enlist for financial reasons.  He is able to serve the Army better at 39 than when he was 17 years old.

3.  He provides:

* Self-authored letter, dated 20 August 2012
* NGB Form 22 for the period ending 19 August 1991
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 April 1991
* Letter from the TXARNG, dated 15 August 2012
* Letter from his Member of Congress, dated 14 March 2011
* Letter from the Texas Office of the Adjutant General to his Member of Congress, dated 1 February 2012
* Two character reference letters
* DD Form 2807-2 (Medical Prescreen of Medical History Report), dated
22 August 2011
* USMEPCOM PCN 680-3ADP (Processee/Enlistee Record), dated
13 October 2011
* DD Form 2808 (Report of Medical Examination), dated 21 September 2011
* EMP Facts, dated 14 October 2011
* Office of Personnel Management Investigations Service Case closing Transmittal, dated 13 October 2011


* OATG/EPMS Automated Prior to Expiration of Term of Service (PETS) Order 27-32, issued by the State of California, Office of The Adjutant General Discharge, dated 20 August 1991

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 was born on 22 November 1972.  He enlisted in the CAARNG on 20 July 1990 at the age of 17 years, 7 months, and 29 days.  On 8 August 1990, he was ordered to active duty for training (ADT).  He completed his training and he was awarded military occupational specialty 45G (Fire Control System Repairer).

3.  In January 1991, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for disobeying a lawful order by not reporting to the Recreation Center for detail.

4.  On 14 February 1991, he submitted a request for discharge based on being a conscientious objector.

5.  On 8 March 1991, he was notified to appear before a conscientious objector hearing scheduled for 12 March 1991 at Aberdeen Proving Ground, MD.  He acknowledged receipt of this notification.

6.  On 12 March 1991, he acknowledged the matters pertaining to his conscientious objector hearing were explained to him.

7.  His chain of command recommended approval of his application for conscientious objector status.


8.  On 1 July 1991, his application for conscientious objector status was approved.

9.  On 19 August 1991, he was honorably discharged from the CAARNG under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27q, by reason of conscientious objection.  He completed 1 year and 1 month of service.  His NGB Form 22 shows he was assigned an RE-3 code.

10.  He provided a letter from the Director, Army Personnel at Joint Force Headquarters, Adjutant General's Department, Austin, TX, dated 15 August 2012.  On behalf of General N-----, the Director responded to the applicant regarding his desire to serve with the TXARNG.  The applicant was informed that it was not within General N----'s authority to re-evaluate his discharge or to change the reason for discharge or the RE code shown on his NGB Form 22.  He was advised to apply to this Board.  He was further informed that he was past the maximum age of 36 allowed by the U.S. Army for attendance at his initial basic and advanced individual training, which is not waivable by the Department of the Army.

11.  He provided two character reference letters from co-workers who essentially stated the applicant's work ethics exceeded the standards for the level of performance and behavior needed for our armed forces.  He was described as being truly dedicated, passionate, reliable, committed, always exceeds everyone's expectations, continuously seeks self-improvement, and accepts greater responsibility.  He should be given the opportunity to reenter military service.

12.  Army Regulation 600-43 (Conscientious Objection) sets forth policy, criteria, responsibilities, and procedures to classify and dispose of military personnel who claim conscientious objection to participation in war in any form or to the bearing of arms.  The regulation states that military personnel who seek either discharge or assignment to noncombatant duties because of conscientious objection will submit an application on a DA Form 4187 (Personnel Action).  Personnel will indicate whether they are seeking discharge or assignment to noncombatant duties.  Commanders will insure that persons requesting conscientious objector status and discharge are advised that their refusal to perform military duty, wear the uniform or otherwise comply with lawful orders of competent military authority, will bar all their rights under the laws administered by the Department of Veterans Affairs (VA).  The interviewing chaplain will advise the conscientious objector 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.
13.  The regulation further states that a person may withdraw his or her application before final action has been taken.  Headquarters, Department of the Army (Conscientious Objector Review Board), will make the final determination on all applications requesting discharge.  Reserve Component personnel not on active duty or active duty for training determined to meet the criteria for discharge, orders will cite the reason for discharge as conscientious objector.

14.  Army Regulation 601-210, in effect at the time, covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  The Army National Guard will use this regulation for information purposes only.  In case of conflict between this and other regulations establishing enlistment eligibility criteria, this regulation will take precedence. Chapter 4, paragraph 4-25 lists nonwaiver separations and/or discharges that include discharges by reason of conscientious objection per Army Regulation 600-43.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he needs his reason for discharge removed in order to reenter military service is acknowledged.  However, the evidence of record does not indicate that the reason for his discharge from the CAARNG was in error or unjust.

2.  Based on Army Regulation 601-210, separations and discharges by reason of conscientious objection is a nonwaivable bar to enlistment.

3.  He contends he was young and immature.  Records show he was 18 years of age at the time he applied for conscientious objector status.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  His service record shows he voluntarily requested discharge from the CAARNG by reason of being a conscientious objector.

5.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.

6.  The evidence confirms the applicant’s RE code was assigned based on his status as a conscientious objector and therefore, is correct.  His service record is void of evidence that shows the reentry code issued to him was in error or unjust.


7.  The character reference letters provided by the applicant's co-workers is acknowledged.  However, the letters alone do not mitigate the fact that the applicant voluntarily requested discharge as a conscientious objector that disqualifies him from reentering military service.

8.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120016208



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ABCMR Record of Proceedings (cont)                                         AR20120016208



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