IN THE CASE OF:	   

		BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130015668 


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 bad conduct discharge (BCD) to either a general or an honorable discharge.

2.  He states that he was drafted into the Army and was unsuccessful in his attempts to be separated as a conscientious objector.  He served the Army for 7 months prior to appearing before a general court-martial (GCM) and then serving in confinement for 4 months.  His BCD should have been upgraded at the time amnesty was granted to draft dodgers.  He graduated from Eastern Washington University with a degree in education.  He is currently on Social Security disability suffering from severe depression.

3.  He provides no additional evidence in support of this 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 contains a DD Form 47 (Record of Induction), initiated on 15 December 1970.  Item 14 (Conscientious Objector) of this form is blank.  Section VII (Determination at Preinduction Examination) and Section VIII (Determination at Induction Examination) shows he was found acceptable for induction into the Armed Forces.  The applicant was inducted into the Army of the United States on 3 February 1971.  He never completed initial entry training and was not awarded a military occupational specialty.  The highest grade he attained was private/E-1.

3.  On 6 March 1971, the applicant submitted a request for separation as a Conscientious Objector based upon his philosophical beliefs which developed or became fixed subsequent to his entry on active duty in the military service.  He stated that he had served less than 180 days in the military service and, if discharged as a Conscientious Objector, he was willing to work under the Selective Service Civilian Work Program for Conscientious Objectors.  The applicant explained that during the past few years he had acquired beliefs that made him a devout Christian in a form of Christianity that did not follow the generally accepted norms of Christian worship.  As a result, he:

* was anti-political
* was opposed to all war, militancy, use of force, and above all participation in any military system
* had no fear of society and what it could do to him if, for some reason, his attempts to preserve his beliefs failed
* was a Conscientious Objector
* believed participation in the Armed Forces or anything closely related to militancy was immoral
* could not provide a name and present address of guidance in Religion
* could not justify the use of force in any situation; he was a pacifist and would rather be killed than kill another human
* had never been a member of any military organization; now was he a member of a religious sect

4.  The applicant provided the following statement at the end of his application and authenticated it with his signature:

	"I have been counseled concerning possible non-entitlement to benefits administered by the Veterans Administration due to discharge from the military service as a Conscientious Objector.  I understand that a discharge as a Conscientious Objector who refuses to perform satisfactory military duty or otherwise to comply with lawful orders of competent military authority shall bar all rights based upon the period of service from which discharged, under any laws administered by the Veterans Administration except his legal entitlement (if any) to any war risk, Government (converted) or National Service Life Insurance)."

5.  The applicant's record contains a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code for Military Justice (UCMJ)) which shows he accepted nonjudicial punishment (NJP) for violating Article 86, UCMJ by failing to go to his appointed place of duty on 17 March 1971.

6.  The applicant's request for separation was considered by a Conscientious Objector Review Board under the provisions of Army Regulation 635-20.  It was noted that no vested right exists for any person to be discharged from the Army at his own request, even for conscientious objection, prior to the expiration of his term of service.  Discharge for conscientious objection is at the grace of the Secretary of the Army and the applicant bears the burden of clearly establishing that he meets the requirements provided by the Secretary in the above cited regulation.  The board found that the applicant had not satisfied this burden and recommended disapproval of his request for separation as a Conscientious Objector.  The board provided an analysis of each of the applicant's contentions and then offered a counterpoint.  As a result, the applicant's request was disapproved with the following explanation:  "Applicant lacks the depth of conviction required to qualify for discharge as a Conscientious Objector."

7.  GCM Order Number 180, published by Headquarters, U.S. Army Training Center, Infantry and Fort Lewis, Fort Lewis, WA, dated 30 September 1971, shows that a GCM tried the applicant for violating Article 90, UCMJ, by willfully disobeying a lawful command from a superior commissioned officer to go to the supply room, sign for and draw a weapon, equipment, and proceed to training on 26 July 1971.  He pled Not Guilty, but was found Guilty.

8.  As a result, the applicant was sentenced by a military judge to be discharged from the service with a bad conduct discharge, to forfeit all pay and allowances, and to be confined at hard labor for one year.  The sentence was adjudged on 7 September 1971.

9.  On 30 September 1971, the sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of the appellate review, the applicant was confined in the U.S. Disciplinary Barracks, Fort Leavenworth, KS.

10.  On 20 December 1971, the U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and reduced the confinement portion of the sentence to 4 months.

11.  GCM Order Number 1575, issued by Headquarters, U.S. Disciplinary, Fort Leavenworth, KS, dated 27 December 1971, shows the appropriate authority ordered the sentence to be duly executed.  

12.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 28 December 1971 under the authority of GCM Order Number 180, dated 30 September 1971, and GCM Order Number 1575, dated 27 December 1971, as a result of court-martial.  This form also shows his character of service as "Under Conditions Other Than Honorable" and he was issued a DD Form 259A (Bad Conduct Discharge Certificate).  He was credited with a total of 7 months and 4 days of active service and 114 day of time lost.

13.  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 set aside a conviction.  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.

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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.

	a.  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.

	b.  This regulation also provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

15.  Presidential Proclamation Number 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for separation from the Army as a Conscientious Objector was duly considered by a contemporaneous board and subsequently denied based upon the determination that he lacked the depth of conviction required to qualify for discharge as a Conscientious Objector.

2.  Once his request was denied, it was his duty to comply with the UCMJ, which he elected not to do.  The applicant's trial by court-martial was warranted by the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations.

3.  The applicant's assertion that he should have been granted clemency based upon Presidential Proclamation Number 4313 is duly noted.  However, clemency under that Proclamation was limited to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for absence without leave (AWOL)-related incidents between August 1964 and March 1973.  The applicant's GCM was not the result of an AWOL incident.

4.  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 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.

5.  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)                                         AR20130015668





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ABCMR Record of Proceedings (cont)                                         AR20130015668



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